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Delgamuukw Trial Transcripts
British Columbia. Court of Appeal
British Columbia. Supreme Court
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1202 Submissions by Mr. Gouge 1 Vancouver, B.C. 2 29 May 1992 3 4 (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT) 5 6 THE REGISTRAR: Order in court. 7 TAGGART, J.A.: Mr. Gouge, just before you begin, one of the 8 subjects discussed in the pre-hearing conference this 9 morning was the question of the status of Alcan as an 10 intervenor and its prospective status as a party to 11 this appeal. The Court has had an opportunity to 12 discuss that subject. There will be no decision with 13 respect of the party status until after oral argument 14 has been completed on July 3. We will proceed to the 15 end of the oral argument on this appeal on the basis 16 that Alcan is an intervenor. If the matter needs to 17 be dealt with thereafter the 3rd of July, the parties 18 will be given adequate notice. 19 MR. GOUGE: Thank you, my lord. 20 My lords, yesterday I was presenting the 21 submission that a provincial statute might be 22 effective to extinguish aboriginal title after 23 Confederation if it was a statute whose pith and 24 substance or fundamental character was one of the 25 heads of legislative authority set out in Section 92, 26 and Mr. Justice Lambert put to me the proposition as I 27 understood his lordship that that might not be so if 28 the effect of the provincial statute was to extinguish 29 aboriginal title and if aboriginal title was in some 30 way bound up with Indianness in such a way as to be 31 fundamental to the rights of aboriginal people. 32 It is my respectfull submission that the 33 proposition put to me by Mr. Justice Lambert would be 34 in error with respect to the constitutional framework 35 of Canada prior to 1982. The reason for that is that, 36 if your lordship's proposition were accepted, it would 37 be to judge the constitutional validity of a 38 provincial statute solely by its effect and that, in 39 my respectful submission, was not the principle by 40 which provincial statutes were to be tested prior to 41 1982. The authority for that proposition your 42 lordships will find in Volume A-69 at tab 6, the 43 judgment of the Supreme Court of Canada in the 44 Anti-Inflation reference. The judgment of the Learned 45 Chief Justice is the first of the judgments. I refer 46 your lordships to page 388. I am sorry, my lords, I 47 am on page 12 of my factum. 1203 Submissions by Mr. Gouge 1 TAGGART, J.A.: Yes. I have that. It is the reference to the 2 Anti-Inflation. 3 MR. GOUGE: Yes, my lords. Chief Justice Laskin said at page 4 388: 5 6 "In order to assess how relevant and, if relevant, 7 what weight should be assigned to the extrinsic 8 material, it is necessary to examine the ambit of 9 the legislative power under which the 10 Anti-Inflation Act was enacted. It is my opinion 11 that only in such a context can the Court be 12 urged, whether through a doctrine of judicial 13 notice or through an adaptation of constitutional 14 purposes of the rules in Heydon's case, to 15 consider extrinsic materials as bearing on the 16 validity of challenged legislation." 17 18 Now, in the case of aboriginal title of course the 19 extrinsic material would be evidence as to aboriginal 20 culture, values, that sort of thing. 21 22 "It may well be that in most situations it is 23 unnecessary to go beyond the terms of the impugned 24 legislation to determine its validity. Yet, even 25 where this has been deemed sufficient Courts have 26 thought it proper to consider the operation and 27 effect of the legislation as providing a key to 28 its purpose, especially where the allegation is 29 that the legislation has been cast in colourable 30 form." 31 32 So especially, my lords, is that so where the 33 Province, under the guise of legislating in respect of 34 property and civil rights, has actually been aiming 35 at, if you will, aboriginal people. If I obtain the 36 opportunity to make submissions to your lordships on 37 the particular provincial statutes upon which I will 38 rely, it will be my submission that they were in 39 relation to property and civil rights and not 40 colourful. His lordship continued: 41 42 "This was done by this Court in Reference re 43 Alberta Legislation. There, Lord Maugham speaking 44 for the Judicial Committee, pointed out that a 45 necessary step in a case of difficulty is to 46 examine the effect of the legislation and 'for 47 that purpose the Court must take into account any 1204 Submissions by Mr. Gouge 1 public general knowledge of which the Court may 2 take judicial notice, and may in a proper case 3 require to be informed by evidence as to what the 4 effect of the legislation will be'. 5 This Court supported such an approach to 6 extrinsic evidence in Lower Mainland Dairy 7 Products Board v. Turner's Dairy Ltd. where 8 Taschereau, J., as he then was, speaking for the 9 majority of the Court said that 'in certain cases, 10 in order to avoid confusion extraneous evidence is 11 required to facilitate the analysis of legislative 12 enactments, and thus disclose their arms which 13 otherwise would remain obscure or even completely 14 concealed'. The references by Lord Maugham to the 15 admissibility of extrinsic evidence 'in a proper 16 case' and by Taschereau, J. to admissibility of 17 such evidence 'in certain cases' support my view 18 view that no general principle of admissibility or 19 inadmissibility can or ought to be propounded by 20 this Court, and that the questions of resort to 21 extrinsic evidence and what kind of extrinsic 22 evidence may be admitted must depend on the 23 constitutional issues on which it is sought to 24 adduce such evidence. 25 This view is strengthened by the fact that this 26 Court and the Privy Council have recognized that 27 in some kinds of cases the effect of legislation 28 has no bearing on its constitutional 29 validity. Hence, extrinsic evidence as to its 30 effect has no weight. Thus, in Attorney-General 31 of Saskatchewan v. Attorney-General of Canada, the 32 Privy Council said that 'consequential effects are 33 not the same thing as legislative subject matter. 34 It is the 'true nature and character of the 35 Legislation' - not itself ultimate economic result 36 - that matters." 37 38 So, in my submission, my lords, the effect of a 39 provincial statute on an aboriginal way of life is 40 relevant to its characterization as, on the one hand, 41 legislation in respect of property and civil rights 42 or, on the other, legislation of Indians. Relevant, 43 yes; determinative, in my submission, no, on the 44 authorities pertaining to the application of the 45 Canadian Constitution prior to 1982. So if the 46 proposition put to me by Mr. Justice Lambert yesterday 47 were right, your lordships would be finding that in 1205 Submissions by Mr. Gouge 1 the context of aboriginal people effect is 2 determinative of constitutional validity. That, in my 3 submission, cannot be so on the authorities. 4 There was reference in many of the submissions to 5 your lordships to the notions of honour of the Crown, 6 fiduciary obligation, arising out of Guerin and out of 7 other cases, and I had wondered in preparing my 8 submissions for your lordships how one could reconcile 9 those observations with the notion of the sovereignty, 10 supremacy of parliament as it was recognized in the 11 Canadian Constitution prior to 1982, because if, after 12 all, as was held in the cases to which I referred your 13 lordships yesterday, Parliament can do what it likes 14 and the Court has no jurisdiction to question the 15 wisdom of what Parliament has done. How can one 16 reconcile that with the judicially imposed constraint 17 upon legislation to say it must conform to the Court's 18 notes of the honour of the Crown? The answer to the 19 dilemma, my lords, which I faced on that issue is that 20 the ability of the Court to constrain legislation by a 21 conception of fiduciary duty or honour of the Crown 22 arose only from the constitutional amendments in 1982 23 and has, in my submission, no place in the 24 constitutional analysis of provincial legislation 25 enacted prior to 1982. The authority for that 26 proposition, my lords, comes from Sparrow which is in 27 volume A-69 at tab 3 and if your lordships would refer 28 to page 1109 of that judgment. This is the judgment 29 of the Court given by The Honourable The Chief Justice 30 and Mr. Justice LaForest. If the first full paragraph 31 on page 1109, it was said: 32 33 "There is no explicit language in the provision..." 34 35 that is Section 35(1) of the Constitutional Act 1982: 36 37 "...that authorizes this Court or any court to 38 assess the legitimacy of any government 39 legislation that restricts aboriginal rights." 40 41 Now, your lordships will recall that I referred 42 you yesterday to the decision in Attorney-General of 43 Ontario v. Attorney-General of Canada which is tab 2 44 in my book and which spoke to the pre-1982 Supremacy 45 of Parliament. Their lordships went on: 46 47 "Yet, we find that the words 'recognition and 1206 Submissions by Mr. Gouge 1 affirmation'..." 2 3 to be found in Section 35: 4 5 "...incorporate the fiduciary relationship referred 6 to earlier and so import some restraint on the 7 exercise of sovereign power. Rights that are 8 recognized and affirmed are not absolute. Federal 9 legislative powers continue..." 10 11 that is to say after the constitutional amendments in 12 1982: 13 14 "...including, of course, the right to legislate 15 with respect to Indians pursuant to S. 91(24) of 16 the Constitution Act. These powers must, however, 17 now..." 18 19 and I ask your lordships to note the word "now": 20 21 "...be read together with S. 35(1). In other 22 words, federal power must be reconciled with 23 federal duty and the best way to achieve that 24 reconciliation is to demand the justification of 25 any government regulation that infringes upon or 26 denies aboriginal rights." 27 28 And then if your lordships would turn to the top of 29 page 1110, you will see that the Court said: 30 31 "Section 35(1) suggests that while regulation 32 affecting aboriginal rights is not precluded, such 33 regulation must be enacted according to a valid 34 obj ective." 35 36 So my point, my lords, is that Section 35 was not 37 retroactive. Your lordships will recall the word 38 existing in the section and the reference that was 39 made to that word in the Supreme Court of Canada 40 judgment made in Sparrow. When your lordships are 41 assessing the validity of a pre-1982 Provincial 42 Statute, you must in my submission do so by reference 43 to the Constitution as it existed at the time that it 44 was -- that this statute was enacted and apply the 45 previous judgments of the Courts of this country and 46 of the Privy Council articulating the principles by 47 which that constitution was to be interpreted and 1207 Submissions by Mr. Gouge 1 applied. 2 If your lordships were to do the contrary, if your 3 lordships were to apply to a pre-1982 statute the 4 constitution of Canada as it now exists and as it has 5 now been interpreted by the Courts of this country, 6 your lordships would be giving retroactive effect 7 Section 35, that is not what the constitutional 8 authority decided to do in 1982. Prior to 1982, the 9 rule was supremacy of parliament. The authority of 10 this court was derived from the Constitution and is in 11 my respectful submission subordinate to the 12 Constitution. It is, in my submission, not open to 13 your lordships to apply to a statute in, for example, 14 1921 the Constitution as it was amended in 1982. 15 Now, parliamentary supremacy is not these days a 16 fashionable concept. First, my lords, in my 17 submission, that is not a relevant observation to the 18 issues before your lordships. That goes back to my 19 opening remarks yesterday. The issue with respect to 20 constitution of this country before your lordships is 21 not what it ought to have been but rather what it was. 22 And the constitutional rule in Canada prior to 1982 23 was for better or worse parliamentary supremacy. I 24 think I should also say, my lords, that there is a 25 legitimate school of thought that said that 26 parliamentary supremacy was the right constitutional 27 principle. That's not for your lordships to decide, 28 in my submission, but is a matter that ought in my 29 submission not to be forgotten. 30 Returning your lordships to my factum at page 12, 31 I had made the point that the constitutional validity 32 of a statute prior to 1982 was not determined by its 33 effect. My second observation with respect to the 34 principles which guide the assessment of validity of 35 provincial statutes prior to 1982 is that your 36 lordships cannot read the statute in isolation. You 37 have heard the remarks of Chief Justice Laskin about 38 the admissibility of extrinsic evidence but, in my 39 submission, in the pre-1982 constitutional regime more 40 significant than extrinsic evidence was the 41 legislative context of the statute; that is to say, 42 looking at the expression of the will of the 43 legislature first is expressed in the statute in 44 question; what was the fundamental character. In 45 cases of doubt, how did that statute fit into the 46 general legislative scheme of the province as 47 determined by reference to other statutes which may be 1208 Submissions by Mr. Gouge 1 companion statutes enacted at the same time. Third, 2 if doubt remains, reference to extrinsic evidence 3 including evidence as to its effect. The authority on 4 that point, my lords, which I will not read from 5 because the passage is long, is to be found at the top 6 of page 13 of my factum which is the Residential 7 Tenancies reference from Ontario. Your lordships will 8 recall that the establishment of the Rentalsman's 9 office had been challenged on constitutional grounds 10 on the basis that the legislature had created in 11 essence a Section 96 court. That submission was 12 rejected by the Supreme Court of Canada which 13 articulated a three-part test set out in the judgment 14 to assess the validity of provincial legislation which 15 took powers away from the superior Courts and can turn 16 them on a provincial tribunal. 17 It is the last element of the test to which I wish 18 to refer your lordships this morning, because the 19 Supreme Court of Canada held that even if the 20 legislation failed on the first two branches of the 21 test, that is to say, was it a power customarily 22 exercised by superior Courts at the time of 23 Confederation; and, secondly, is it an infringement 24 upon that area. Their lordships said that the 25 legislation may yet be valid and may take authority 26 away from a Section 96 court if it is a small part of 27 a general provincial scheme in pursuit of a legitimate 28 provincial legislative purpose. They referred to the 29 cases on Workman's Compensation legislation which took 30 away from the superior Courts the jurisdiction over 31 on-the-job injuries, and the Court said, yes, that's 32 an infringement on a federal power, Section 96 judges, 33 but it is ancillary to and necessarily incidental to a 34 broader scheme to introduce a system of no-fault 35 compensation for workers injured on the job or for 36 tenants whose residential tenancies are infringed upon 37 and so even though it has that effect upon Section 96 38 powers, one has to look at the broader scheme of the 39 Act and ask whether, overall, is it a legitimate 40 provincial objective or a legitimate provincial power, 41 or is it, if you will, a deliberate infringement upon 42 a federal power. The legislation to which I will 43 refer, if your lordships give me that opportunity, 44 will show a provincial policy to develop the economy 45 of the province, a legitimate provincial objective, 46 property and civil rights, as a necessary part of the 47 pursuit of that objective, the appropriation to the 1209 Submissions by Mr. Gouge 1 province of all of the water power resources, the 2 ability to generate electricity in the province. My 3 submission to your lordships will be that, if you look 4 at the history of water legislation in the province 5 and if you look at the water legislation of general 6 application enacted at the same time as the statute to 7 which Mr. Justice Berger referred to your lordships a 8 few days ago, you will see that the provincial object 9 was to appropriate to itself all of the ability to 10 generate hydro electricity in the province and that 11 they didn't treat aboriginal people any differently in 12 that respect than anyone else. So the province 13 legislated that no one has any water rights in British 14 Columbia unless they have a water licence. There was 15 a suggestion, although not a finding, of this Court in 16 a judgment of this Court in 1918 to the effect that 17 that might not apply to aboriginal people because the 18 statute didn't say anything about aboriginal people. 19 Immediately after that judgment was given by this 20 Court, the Indian Water Claims Act to which Mr. 21 Justice Berger referred was brought into effect to 22 say, no, no, you haven't understood us, nobody has any 23 water rights whether they are an aboriginal person or 24 not, unless they have a water licence. 25 LAMBERT, J.A.: Could you refer us to that case? It will help 26 us in the understanding of that act. 27 MR. GOUGE: Yes, my lord. I can tell give you that reference at 28 the break. 29 LAMBERT, J.A.: It doesn't have to be now. Yes. 30 MR. GOUGE: So I come to this, my lords, from the Residential 31 Tenancies Act because it is my submission to your 32 lordships that when you are considering whether that 33 statute that Mr. Justice -- that Mr. Berger talked 34 about was valid provincial legislation, you can't just 35 look at the statute. You have to look at it in its 36 legislative and historical context and ask yourselves 37 was the legislature trying to legislate in respect of 38 Native people and Native rights, or was it trying to 39 legislate in respect of water and when it discovered 40 that the Court had raised a possibility that the 41 statute might not apply to Native people, it clarified 42 what it had been trying to do as part of its general 4 3 scheme. 44 I come next, my lords, to the concept of reading 45 down provincial legislation, the subject that Mr. 46 Justice Hutcheon and Mr. Justice Lambert have each 47 addressed in their decisions in Dick and other cases, 1210 Submissions by Mr. Gouge 1 and I have to make your lordships the most respectful 2 submission that your lordships were in error in 3 considering that, with respect to matters prior to 4 1982, this Court had jurisdiction to read down the 5 provincial statute. 6 In your judgment, your lordships referred to 7 Supreme Court of Canada judgments in Gay Alliance 8 Toward Equality and in McKay. In each of those cases, 9 my lords, which were well prior to 1982, the Supreme 10 Court of Canada said, in my submission, when 11 considering a provincial statute which infringes upon 12 a federal power, the court must, if the words of the 13 statute so permit, construe the statute so as to 14 infringe as little as possible upon the federal power. 15 I accept that proposition both before and after 1982. 16 There is, in my submission, a fundamental difference 17 between that proposition and the concept of reading 18 down because the concept of reading down, as I 19 understand it, means, regardless of what the 20 legislature intended and regardless of how explicit 21 the legislature has been about what it's intended, we, 22 the Court, say that they cannot do that and we will 23 construe the statute so as not to apply. My first 24 point about your lordship's observations on that 25 issue, and I say this with great respect -- 26 HUTCHEON, J.A.: Sorry, in what case did we say this? 27 MR. GOUGE: Mr. Justice Lambert said it in Dick, my lord. 28 HUTCHEON, J.A.: Yes. 29 MR. GOUGE: And your lordship said it in -- I trust your 30 lordship will forgive me for this. 31 HUTCHEON, J.A.: Yes, quite all right. I thought you might know 32 it. 33 MR. GOUGE: I am sorry, my lord, it is in the other factum. 34 HUTCHEON, J.A.: All right. 35 MR. GOUGE: I will give your lordships the reference. 36 HUTCHEON, J.A.: What I said was I was reading something down, 37 was I? 3 8 MR. GOUGE: Yes, my lord. 39 HUTCHEON, J.A.: And this was in relation to a pre-1982 matter 40 and your point is that that can't be done. Is that 41 right? 42 MR. GOUGE: Yes, my lord. The defence charged, which was before 43 your lordship, it happened prior to 1982. Your 44 lordship's judgment was after 1982. 45 HUTCHEON, J.A.: Yes. 46 LAMBERT, J.A.: I understand your description about reading down 47 as opposed to giving one construction rather than 1211 Submissions by Mr. Gouge 1 another and as opposed to severability, I am just 2 waiting for you to pursuade me that the law changed in 3 1982. 4 MR. GOUGE: Thank you, my lord, I will do my best. Mr. Justice 5 Hutcheon, your judgment was in Regina v. Jack and 6 Charlie. 7 HUTCHEON, J.A.: Oh, yes. 8 MR. GOUGE: And if I may, my lord, I will give the registrar a 9 note of the judgment at the break. 10 HUTCHEON, J.A.: Thank you. I will remember. 11 MR. GOUGE: To answer Mr. Justice Lambert's observation, it is 12 necessary to ask your lordships to revisit the 13 judgments in Gay Alliance and in -- 14 LAMBERT, J.A.: McKay. 15 HUTCHEON, J.A.: McKay. That's a voting case. 16 MR. GOUGE: Yes, my lord. 17 HUTCHEON, J.A.: Jack and Charlie was hunting on the island, was 18 it? 19 MR. GOUGE: Yes, my lord. 20 TAGGART, J.A.: Religious parks. 21 HUTCHEON, J.A.: Yes. They went off on a different point in the 22 Supreme Court of Canada. 23 MR. GOUGE: It did, my lord. 24 HUTCHEON, J.A.: Yes. 25 MR. GOUGE: Yes. In fact, if memory serves, the accused was 26 actually convicted in the Supreme Court although 27 incorporating the Section 88 of the Indian Act 28 argument rather than the point which had concerned 29 your lordship. 30 HUTCHEON, J.A.: Yes. 31 MR. GOUGE: If one reads the two Supreme Court of Canada 32 judgments, your lordships will see that what the 33 Supreme Court of Canada said is, where the words of 34 the statute so permit, we will endeavour to construe 35 it so as to infringe as little as possible on the 36 federal power. That's very different from saying the 37 legislature can't do that. 38 In my submission, your lordships now have 39 jurisdiction in respect of post-1982 conduct to read 40 down a statute. That jurisdiction, my lords, comes 41 from Section 52 of the Constitution Act 1982 which is 42 quoted, my lords, in my factum at paragraph 6, and I 43 will -- paragraph 16 on page 9: 44 45 "The Constitution of Canada is the supreme law of 46 Canada, and any law that is inconsistent with the 47 provisions of the Constitution is... 1212 Submissions by Mr. Gouge 1 2 and I emphasize these words, my lords: 3 4 "...to the extent of the inconsistency, of no 5 forcing or effect." 6 7 That highlights, my lords, what is in my submission a 8 fundamental difference between the constitutional 9 regime prior to 1982 and that subsequent to 1982. 10 Prior to 1982, there was only one legitimate judicial 11 inquiry: What is the pith and substance of the 12 statute. And that was a decision that was black and 13 white. There is only one pith and substance and it 14 either falls in Section 92 or it doesn't. If it falls 15 in Section 92, then the statute is valid in 16 legislation regardless of its effects and it applies 17 to everybody. If the pith and substance doesn't fall 18 in Section 92, then it is not valid legislation and it 19 doesn't apply to anyone. And I will come back to 20 authority for that proposition in a moment. 21 After 1982, the constitutional hierarchy of the 22 country was, in my submission, fundamentally changed. 23 Prior to 1982, as your lordships have heard me say, 24 this Court was subordinate both to the Constitution 25 and to the will of the legislature, each within its 26 distinct area. So that prior to 1982, it was not open 27 to your lordships to say this was a bad law. All your 28 lordships could say was, it's either within provincial 29 power or it's not. Since 1982, your lordships have 30 had jurisdiction in limited areas to say the 31 legislature can't do this, even though it is within 32 the sphere of power allocated to the legislature. 33 There are the fundamental freedoms referred to in the 34 Charter of Rights. There are constitutional 35 guaranteed aboriginal rights, and there is this 36 fiduciary obligation of the Crown which arises, as I 37 have attempted to show your lordships, from Sparrow, 38 but arises only from Section 35. So after 1982, your 39 lordships can say this is a bad law, it infringes the 40 fundamental freedom, it infringes an aboriginal right, 41 it offends against the owner of the Crown and pursuant 42 to Section 52 to the extent it does so, it is 43 unenforceable. 44 LAMBERT, J.A.: Do you know the date of the decision of the 45 McCutcheon case? 4 6 MR. GOUGE: I do not. 47 LAMBERT, J.A.: Supreme Court of Canada. You remember the 1213 Submissions by Mr. Gouge 1 McCutcheon case re-examines the area of what you do 2 when provincial -- valid provincial legislation and 3 valid federal legislation meet. 4 MR. GOUGE: Yes. 5 LAMBERT, J.A.: And it says, as I understand it, that, if they 6 are consistent with each other, then there is no 7 problem. They are both valid, they both may be 8 directing you to have ten lights per square -- per ten 9 square yards or something in the warehouse, something 10 like that; they both direct you on that but, if one 11 says you must have at least ten and the other says you 12 cannot have more than eight, they are in conflict. At 13 that point, the McCutcheon case says that the federal 14 rule prevails. What McCutcheon is doing is reading 15 down the provincial legislation in those circumstances 16 in my view. 17 Now, if the McCutcheon case pre-dates 1982 and 18 doesn't rely on this constitutional provision, then I 19 would say that the constitutional provision now 20 expressed in paragraph -- Section 52 of the 21 Constitution Act was being recognized in McCutcheon as 22 a valid and constitutional principle quite separate 23 from the enactment of Section 52, and that the law had 24 developed to the point of permitting reading down 25 before, even if reading down was not mentioned in 26 McCutcheon, it is the same principle so I would be 27 interested in whether McCutcheon relied on Section 52 28 or not. 29 MR. GOUGE: We will ascertain the answer to your lordship's 30 question and, again, if we may, we will give the clerk 31 a note. But, with respect, the conclusion which your 32 lordship advances doesn't follow from what you have 33 said about McCutcheon. I, of course, quite accept 34 your lordship's summary of the judgment but, in my 35 respectful submission, the conclusion doesn't follow. 36 I say that for this reason: The paramountcy doctrine 37 has been part of Canadian constitutional law since 38 1867. It rather makes my point about not assessing 39 the validity of a statute by its effect because, if 40 both the provincial legislature and the federal 41 parliament are competent to tell you how many lights 42 to have in your warehouse, plainly you don't assess 43 the pith and substance of the legislation by looking 44 at its effect, because it can have only one pith and 45 substance, and if that's assessed by looking at how 46 many lights you are required to have in your 47 warehouse, it must be either property and civil rights 1214 Submissions by Mr. Gouge 1 or workers' safety or something. But going on from 2 that, it was recognized very early in the 3 constitutional jurisprudence of this country that, 4 because different powers, one federal and one 5 provincial, might justify legislation with respect to 6 the same subject, there had to be a way of resolving 7 that sort of conflict that your lordship has just put 8 to me, and the principle that was articulated by the 9 Courts was that where the conflict is inescapable 10 federal legislation governs. Federal legislation is 11 paramount. That, with respect, my lords, is very 12 different from saying the Court's view of what the 13 legislation ought to be governs. It is a question of 14 which legislative body was paramount, where there was 15 inevitable conflict. 16 LAMBERT, J.A.: My understanding of the reading down doctrine is 17 that you can only apply that doctrine if you have to 18 do it to preserve constitutionality. You don't 19 have -- the Courts don't have a right to read down 20 legislation because they think it is ill-conceived. 21 It is only -- you can only read down to preserve 22 constitutionality. So there is no judgment evolved in 23 the Court's function in that, except to say, here is 24 the area. It is in this kind of application that this 25 legislation is constitutional. You will read it down 26 so that this application is not intended by the 27 legislature, it is not part of the Act, and if what 28 happens then is that, in the McCutcheon case, if the 29 federal legislation were repealed, the provincial 30 legislation would expand into that field. In other 31 aspects of reading down that may not be so if it was a 32 '91, '92 problem. 33 MR. GOUGE: If I may comment back to that observation in just a 34 moment, my lord, I'd like to finish with McCutcheon. 35 The difference between McCutcheon on the one hand and 36 your lordship's judgment in the Indian hunting cases 37 from the other is this: In McCutcheon, you have the 38 federal parliament saying you may not have more than 39 eight lights and the provincial legislature saying you 40 must have at least ten, and the question is which 41 legislature must the subject obey. In the hunting and 42 fishing cases that your lordships have been hearing, 43 you have had the province saying you may not hunt but 44 you do not have federal parliament saying you may 45 hunt. So that when your lordship talks about reading 46 down in that way, it is in my submission only 47 permissible to resolve an otherwise irreconcilable 1215 Submissions by Mr. Gouge 1 conflict between legislatures, not in my submission, 2 as your lordship put to me a moment ago, so as to 3 limit the ambit of a Provincial statute not in 4 conflict with the Federal statute to a particular 5 area. Forgive me, my lord, one more sentence. Put 6 another way, your lordships can only read down where 7 the conflict is created by legislatures, not by the 8 ambit of legislative authority in the absence of 9 conflict with a parliamentary statute. Got lost in 10 that sentence. Forgive me, my lords. It is not 11 permissible where there is no conflict between a 12 federal statute on the one hand and provincial statute 13 on the other. 14 Now, if I may, my lords, I'd like to move to the 15 next point that you put to me about reading down in 16 essence to save a provincial statute. The reason, in 17 my submission, that that doctrine cannot be recognized 18 is that the constitutionality of a provincial statute 19 cannot be imperilled by its effect. If it is on its 20 true characterization in pith and substance 21 legislation in pursuit of a provincial power, then it 22 applies to everyone within the province, whether it is 23 an aboriginal person or a federal company or a bank. 24 My authority for that proposition is the judgment in 25 the Supreme Court of Canada in Cardinal to which I 2 6 will come in a moment. But, if I am right in what I 27 have just said, the constitutional validity of a 28 provincial statute is not imperilled because it 29 purports to apply to aboriginal people in the same way 30 as anyone else. Hence, there is no need to read it 31 down to save it; it was never in jeopardy. As to 32 Cardinal, my lords, I am sure your lordships have been 33 read from this case many times, your lordships will 34 recall the remark of the Supreme Court of Canada to 35 the effect that Indian reserves are not enclaves in 36 provincial legislation and that provincial legislation 37 runs in the same way as it does anywhere else. I ask 38 your lordships to remember the description of the 39 federal power in Section 91(24) which says Indians and 40 lands reserved for Indians. The constitutional 41 statute does not treat lands reserved for Indians any 42 differently than it does Indians. When your lordships 43 are construing the constitutional statute, there is no 44 jurisprudential basis for applying different 45 constitutional principles to Indians than there is to 46 lands reserved for Indians. If lands reserved for 47 Indians are not enclaves immuned from Provincial 1216 Submissions by Mr. Gouge 1 legislation, neither are Indians in my submission. 2 Hence, if one says that a provincial statute runs on 3 an Indian reserve the same way as it does anywhere 4 else, it applies to an Indian in the same way that it 5 does everyone else. 6 HUTCHEON, J.A.: That's too broad, isn't it? The sales tax 7 doesn't apply. 8 MR. GOUGE: That's because there is a federal statute that says 9 it doesn't. That invokes a paramountcy doctrine but, 10 again, it invokes it as a consequence of legislative 11 conflict, not as a consequence of a judicially imposed 12 constraint on provincial legislative power. 13 HUTCHEON, J.A.: It seems to me much too broad a statement. All 14 right. Thank you. 15 MR. GOUGE: Well, I appreciate your lordship's concern. My 16 statement is, in my submission, justified by the 17 authorities, and it brings me with respect back, my 18 lord, to the point which I tried to make and, I fear, 19 made rather poorly yesterday which is that if your 20 lordships are searching for constraints on provincial 21 legislative power prior to 1982, you must find them 22 either in the constitutional statute or in the 23 Canadian constitutional jurisprudence. Those are the 24 sources to which, in my submission, your lordships are 25 entitled to look when you are considering what limits 26 if any there are on Provincial legislative power, and 27 I am not aware of an authority in that context or 28 justification in the statute which would render my 29 proposition too broad as your lordship put it. 30 Forgive me, my lords. I am in a position to give 31 your lordships the judgment of the Court of Appeal on 32 the question of the Water Act. The judgment is 33 Western Canadian Ranching Company Limited v. 34 Department of Indian Affairs. 35 TAGGART, J.A.: Could I have that again? 36 MR. GOUGE: Certainly, my lord. Western Canadian Ranching 37 Company Limited v. Department of Indian Affairs. The 38 citation is 1921, Volume 30, British Columbia Reports, 39 page 25. 40 TAGGART, J.A.: Thank you. 41 LAMBERT, J.A.: Thank you. 42 MR. GOUGE: Thank you, my lord. On the question of reading 43 down, I should draw to your lordships' attention the 44 judgment of the Supreme Court of Canada in Regina v. 45 Dick which is referenced at paragraph 26 of my factum. 46 And your lordships will recall that the Court was 47 there considering Mr. Justice Lambert's reasons in the 1217 Submissions by Mr. Gouge 1 same case and gave approval, in my submission, to what 2 your lordship had said on the subject of reading down. 3 My point about that judgment is simply that the 4 judgment, the observations of the Supreme Court of 5 Canada on that issue in Dick were obiter, and that the 6 provincial legislation in question was upheld and 7 indeed the accused convicted upholding the provincial 8 legislation by virtue of referential incorporation 9 under Section 88 of the Indian Act. I make that 10 observation only to point out that the approval of the 11 concept by the Court in that case was obiter dictum. 12 That brings me, my lords, to paragraph 27 of my 13 factum at the foot of page 16. And I say, my lords, 14 and it is my submission that on this appeal we must 15 attempt to reconcile the remarks of Mr. Justice 16 Lambert in Dick and those of Mr. Justice Hutcheon in 17 Jack with the decision of the Supreme Court of Canada 18 in the Churchill Falls case which was to the effect 19 that the expropriation of all of the assets of a 20 Federal company did not affect its status or capacity, 21 and we submit that those two jurisprudential concepts 22 are reconcilable only if you accept as a proposition 23 that identity or Indianness, as it has been referred 24 to, is something different from assets. And I will 25 read your lordships in a moment from the Churchill 26 Falls case. Your lordships will recall my summary of 27 the Churchill Falls judgment yesterday to the effect 28 that a company continues to be a company even if it 29 can't carry on its business. So, in my submission, 30 aboriginal people continue to be aboriginal even if 31 they no longer have the traditional territories of the 32 kind which are claimed in the case at bar. 33 I find it difficult with great respect to 34 understand why it is that the commercial activity of 35 the group of people who gathered together for that 36 purpose can be less fundamental to their being than 37 the right of hunting and fishing. That is not in any 38 way to denigrate from the importance of spiritual 39 values to people, the importance of their cultural 40 adhesiveness and their identity as people. All I say 41 is that the assets which are in issue in this case are 42 not, in my submission, essential to that purpose. 43 HUTCHEON, J.A.: The difference that I was trying to explain — 44 to express yesterday as in Churchill Falls, they are 45 dispossessed of their assets. That hasn't happened 46 yet in B.C. 4 7 MR. GOUGE: Yes, my lord. 1218 Submissions by Mr. Gouge 1 HUTCHEON, 2 3 4 5 6 7 8 9 MR. GOUGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 HUTCHEON, 34 35 MR. GOUGE 36 37 38 39 40 41 42 HUTCHEON, 43 MR. GOUGE 44 45 HUTCHEON, 46 MR. GOUGE 47 HUTCHEON, J.A.: There would be a parallel if, as in the United States, they moved everyone say to Alberta or somewhere. Then I think there would be a parallel with the Churchill Falls case, but we don't have that. They are there and they are saying we have still got the rights. Now, I can see your point when you come to say the town of Smithers. It's happened there, but they are complaining about it, you see. : I understand what your lordship says. My submission might have been better expressed if I had said the de facto deprivation of their land base, we say it happened de jure a hundred years ago, but I quite take your lordship's point, it didn't happen on the ground a hundred years ago. Our submission is, if you implement today de facto what we say happened de jure a hundred years ago, they will still be aboriginal people; they will still be able to gather, to worship, to dance, to carve, in the same way they did a hundred years ago. They won't own the land anymore. But the question is whether assets are central to identity in the way in which it's been described as Indianness. It is, in my submission, that if, as the Supreme Court of Canada held in the Churchill Falls case, the assets necessary to commercial activity are not essential to the people -- to the identity of people like me in my culture, the assets in question before your lordships are similarly not essential to the identity of aboriginal people in their culture. And my assets are not perhaps as sympathetic as their assets but that is not a basis upon which, in my submission, this Court can act. I am sorry, my lord, but I can't do better than that. J.A.: You can tell that I am not going with you. It just won't work with me. : Indeed, my lord. I am conscious that I ought not to be repetitive but, if I may make this point to your lordship and ask you to consider it, I conceive that your lordship says that because if your lordship's conception, which I don't criticize, of the value of aboriginal culture and of its significance as an existence. J.A.: Culture of any person, any peoples. : Well, then I must ask your lordship, the culture of shareholders of a large corporation? J.A.: One is mechanical and monetary. That's it. : Then I think — J.A.: There is very little spirit in General Motors. 1219 Submissions by Mr. Gouge 1 MR. GOUGE: Not much money either. 2 LAMBERT, J.A.: Not many assets either. 3 MR. GOUGE: I think your lordship makes my point for me. 4 HUTCHEON, J.A.: I do? It was accidental then. 5 MR. GOUGE: No accident that I wear black, my lord. 6 When your lordship makes the assessment that you 7 just made, you are engaged in an activity, with all 8 respect, of assessing relative cultural values and 9 your lordship is saying to me this set of cultural 10 values is more important than that one. The 11 proposition which I put to your lordships is that that 12 is not a legitimate assessment in the Canadian 13 constitutional context prior to 1982 because the 14 constitutional statutes in the constitutional 15 jurisprudence of this country gave your lordships no 16 right when assessing the validity of legislative 17 action to say one culture is more valuable than 18 another culture. That, in my submission, prior to 19 1982 was a matter for the legislature and your 20 lordship, with great respect, is assuming the 21 authority to impose upon the pre-1982 constitutional 22 fabric of this country, your lordship's view as to 23 relative cultural values. I don't criticize the view, 24 I simply say it is beyond your lordship's 25 jurisdiction. 26 My lords, in closing, I'd like to say a word about 27 a difficulty which I face in the submissions that I 28 have made to your lordships. All of these questions, 29 whether they are the response to Mr. Justice Lambert's 30 question, what makes a practice a right, what makes a 31 right aboriginal, or an analysis of the provincial 32 statutes upon which I rely, are specific questions. 33 They require a specific analysis in the first place -- 34 in first case in Mr. Justice Lambert's case of the 35 evidence about a particular practice and its 36 importance. In the case of the validity of the 37 statutes upon which I rely, they depend upon an 38 analysis of the particular statutes in their 39 particular legislative contexts. That sort of 40 analysis is not open to me in my present role and in 41 the time that's been allowed me. But I ask your 42 lordships, when considering whether you can give 43 general answers to those questions, to bear in mind 44 what is in my submission a meritorious principle of 45 the common law and of the constitutional jurisprudence 46 of this country, and that is that the judgment of the 47 Court ought properly to be confined to the specific 1220 Submissions by Mr. Williams 1 issues which are before it and that there is great 2 peril in my submission in broad based statements of 3 principle which are not referenced to particular 4 circumstances. 5 So, in my submission, Mr. Berger's submission to 6 your lordships, the Province had no power to 7 extinguish aboriginal title. That question can't be 8 answered in the abstract in that way. You have to 9 look at the particular statute in its context and 10 perform upon it the appropriate constitutional 11 analysis. 12 With respect to Mr. Justice Lambert's questions, I 13 say with greatest deference to your lordship, your 14 lordship is asking the right questions but in the 15 wrong case in my submission because of the way in 16 which the Appellants have framed their case in this 17 action. They say, if it's in the territory, it's 18 ours, and we can do what we like with it. That is too 19 broad a statement to permit the analysis necessary, 20 with great respect, to answer your lordship's 21 question. My lords, those are my submissions. 22 TAGGART, J.A.: Thank you. We will take the morning break. And 23 then after, begin with the respondent Province. 24 THE REGISTRAR: Order in court. Court stands adjourned for a 25 short recess. 26 27 MORNING RECESS 28 29 30 THE REGISTRAR: Order in court. 31 TAGGART, J.A.: Yes, Mr. Williams. 32 MR. WILLIAMS: Thank you, my lords. 33 My lords, first of all I want to take this 34 opportunity on behalf of my client, the 35 Attorney-General for the Province, to thank my learned 36 friends and your lordships for the accommodation that 37 we have been accorded and the adjournment that was 38 granted to permit us to be able to argue in the matter 39 we wished and I appreciate that very much. Secondly, 40 I would like to make some opening observations and 41 we'll then go to the position paper and then into my 42 factum and I will explain which of us is arguing which 43 parts of the factum. 44 The first thing to say, my lords, is that I 45 believe we are all fully aware of the fact that the 46 disposition of this major case through argument and 47 judgment is clearly a very important historical event 1221 Submissions by Mr. Williams 1 in Canada. The position of the government of the 2 province is that for the future well being of this 3 province, the outstanding land claims, including those 4 of the Appellants, have got to be resolved one way or 5 other, and a determination of these issues in this 6 Court is a part of that, has got to be resolved as 7 soon as it's possible for this province to be able to 8 carry on and not have the continuing problems we have 9 had in the past. Thirdly, I'd like to say that we've 10 tried in this case to adjourn the whole matter so as 11 to be able to negotiate. Of course my learned 12 friends, the Appellants, were of the view and 13 expressed the view that the judgment, that being the 14 law of British Columbia, of the Learned Trial Judge 15 held that any rights which they might have had have 16 been extinguished before Confederation and they were 17 unwilling to and could not go to the bargaining table 18 in that position, and therefore had to come to the 19 Court of Appeal. 20 The Province and the Appellants tried very hard at 21 the outset of this case to achieve an agreement to 22 have the Court deal with the matters of principle and 23 to have the other matters sent off, as we do ask in 24 our factum, to have the other matters sent off to 25 negotiation with a reference back if necessary, and 26 the list that we had was not a proper list. We 27 couldn't live with that list, neither could the Court, 28 and all the efforts that have been made since that 29 time to do anything, we have been unable to get the 30 Federal government to come to a meeting to discuss 31 that and we have therefore been unable to put before 32 you what we had hoped was a memorandum of agreement by 33 the three parties. We and the Appellants have tried 34 but it's not been possible and, accordingly, I think 35 we have to go on and ask your lordships to deal with 36 it as it is and appears that that attempt will not 37 succeed. 38 The Province's approach and my instructions are 39 that we are, rather than taking an adversarial 40 position against the Appellants because it is there to 41 take and because there is a trial judgment, rather 42 than take that position, in light of the positions 43 that have been determined recently and indeed the 44 Learned Trial Judge himself about the responsibilities 45 of the Crown, our position has been and will be this, 46 my lords, that we will oppose the positions of the 47 Appellants where we consider them to be wrong in law 1222 Submissions by Mr. Williams 1 and we will support the position of the Appellants 2 where we consider them to be incorrect in law, and 3 modifications thereof if they are correct in law as 4 well. When we -- the breakdown that I would like to 5 explain to the Court now will be as follows: I will 6 be dealing with the issues of aboriginal rights and 7 ownership and sovereignty or self-government, and the 8 blanket extinguishment. Now, that involves issues 9 number 1 and 2 in our factum. 10 TAGGART, J.A.: Aboriginal rights and? 11 MR. WILLIAMS: Aboriginal rights, ownership, and 12 sovereignty/self-government, and blanket 13 extinguishment. By that, I mean what is essentially 14 the trial judgment extinguishment by the Calder 13. 15 Glen Bell will be dealing with the Royal Proclamation 16 of 1763, and my partner Bob Taylor will be dealing 17 with the extinguishment by adverse dominion, that's 18 issue number 4, and he will also deal with issue 19 number 7. 20 LAMBERT, J.A.: Which is that? 21 MR. WILLIAMS: Well, it is the, sort of, clean-up. I will be 22 coming to that in a moment. 23 And my colleague Mr. Arvay will be dealing with 24 the whole question of remedies and compensation, and 25 that's issues number 3, 5, and 6. 26 My lords, we will finish within the time allotted 27 and I hope earlier. And I will now turn to the 28 position paper. 29 LAMBERT, J.A.: Just for confirmation of the 13 days, I 30 understand that, when you say within the time 31 allotted, that's counting eight days for the Province 32 and five days for the Federal position. 33 MR. WILLIAMS: Yes, my lord. I hope that we can finish earlier 34 and let my friend Mr. Macaulay have some more time or 35 indeed he may not need it, but he seems to think he 36 will at the moment. Yes. 37 LAMBERT, J.A.: Thank you. 38 MR. WILLIAMS: The position paper, my lords, I should read 39 because it remains the foundation of our argument and 40 I say this, it's in tab 1, second page of my factum -- 41 sorry. I am sorry, my factum is -- 42 TAGGART, J.A.: I think it is in volume 1, is it? 43 MR. WILLIAMS: Yes, it is. Volume 1, the other volume is an 44 appendix. 45 LAMBERT, J.A.: I've got — 46 MR. WILLIAMS: That's just the little one. 47 LAMBERT, J.A.: Yes. Let me say this: I've got something 1223 Submissions by Mr. Williams 1 called Revised Factum of the Respondents, Volume 1, 2 and I've got something called Corrected one. 3 MR. WILLIAMS: That's correct, the corrected one. 4 LAMBERT, J.A.: Is it correct that we will be well advised to 5 throw out everything that's just called Revised Factum 6 and obtain instead only things that's are called 7 Corrected Factum. 8 MR. WILLIAMS: Yes. Let me just explain how that happened. 9 When we went through -- we got our factum in on the 10 date that we were required to, but I guess some of the 11 midnight printing and three in the morning work left 12 some mistakes. There were too many, we felt, to just 13 ask your lordships to pencil them in so we redid the 14 contents and gave you a corrected one but there's no 15 substantial change. It's just corrections in that way 16 and of course the aid volumes were put in as well, so 17 you can dispose of the revised factum as long as 18 you've got the corrected factum. I should have 19 explained that. And there is also some speaking notes 20 and I will explain those in a few moments, which 21 should be before you, and I will explain to you when I 22 get to those how the speaking notes will tie in with 23 the factum if I may. 24 In my factum then, if we are all together on tab 1 25 page 2, first is Introduction, and next is Position 26 Paper. This is the fundamental position or the 27 overview, and I think it may be of assistance to keep 28 that in mind. Do you have that, my lords? I am 29 sorry, does everyone have the Position Paper before 3 0 them? 31 MACFARLANE, J.A.: Called Introduction? 32 MR. WILLIAMS: Yes, Introduction, and then it is the next page. 33 Thank you. 34 The Province of British Columbia will revise its 35 factum to reflect its position with respect to the key 36 issues on Appeal as follows: 37 1. The Appellants are not entitled to succeed in 38 their claim for ownership of the lands in question. 39 2. The Royal Proclamation of 1763 does not apply to 40 the areas claimed by the Appellants. 41 3. The Appellants enjoy certain rights to 42 self-government but subject to the laws of Canada and 43 the laws of general application of the province of 44 British Columbia. 45 4. The aboriginal rights of the Appellants which did 46 exist may be described as an interest in respect of 47 lands sui generis. 1224 Submissions by Mr. Williams 1 5. A blanket extinguishment of aboriginal rights 2 throughout the province did not occur at any time. 3 6. The Court will be asked to declare the precise 4 location, scope, content and consequences of these 5 aboriginal rights including whether there has been any 6 extinguishment or diminution of aboriginal rights 7 throughout the territory of the claim, be referred to 8 the parties to form the basis of a negotiated 9 solution. The Court should retain jurisdiction over 10 those issues so that any party may bring the matter 11 back to court in the event that negotiations should 12 fail. 13 7. The Province will submit in the strongest terms 14 that a remedy declaring the existence of aboriginal 15 rights, but requiring the parties to attempt to 16 negotiate the content and consequences of those 17 rights, accords with the historical approach to the 18 resolution of aboriginal claims, the aboriginal rights 19 provision in the Constitution, the interests that 20 those rights were meant to protect, and also in 21 accordance with sound legal principles. 22 8. If, and only if, the Court should reject the 23 Province's submissions set forth above, the Province 24 will be required to argue its alternative position 25 which is similar to the position set forth in the 26 factum of the Attorney-General for Canada in paragraph 27 327 to 380 with certain modifications and amendments 28 thereto. 29 I should say that in it, in a nutshell, that says 30 that, in the event the Court should decide against us 31 on the reference out after there's been the first 32 determinations, then the position that will be taken 33 by the Province of British Columbia in its alternate 34 argument if it must is that the actual instrument 35 which, for example, issues a deed of land which is 36 totally inconsistent with the existence of aboriginal 37 title on that particular parcel of land, would have 38 the effect of extinguishing it. Other instruments may 39 as well, but I don't want to get into that now because 40 my colleague Mr. Taylor will be arguing that aspect of 41 the case, but that is the position if we are required 42 to take it. 43 We understand, of course, if the Court should say 44 that the Calder documents do not extinguish and 45 neither does the deed, but that means there's been no 46 extinguishment whatsoever in this province, that of 47 course is the position of the Appellants. While we 1225 Submissions by Mr. Williams 1 don't agree with that and we argue against it, we 2 understand that that is a possible result of this 3 appeal. 4 MACFARLANE, J.A.: I just don't understand where we stop and 5 make the decision as to the first seven points before 6 you go on to point eight. 7 MR. WILLIAMS: Well, my lords, I think at this point the entire 8 appeal has to be heard. 9 MACFARLANE, J.A.: All right. 10 MR. WILLIAMS: Yes. I am not suggesting for a moment -- 11 MACFARLANE, J.A.: You are going to argue point eight in any 12 event? 13 MR. WILLIAMS: Oh, yes, we are. We are. What we were hoping to 14 do is to have an agreement before you to say you don't 15 need to hear that at this point because we have made 16 an agreement but -- 17 MACFARLANE, J.A.: That's fine then, I understand. You are 18 going to argue it now. 19 MR. WILLIAMS: Yes, we are going to argue it now, but we ask you 20 in rendering your decision to consider the possibility 21 of not determining that at the present time but 22 leaving that for further determination if necessary. 23 It seems to me appropriate, if I may say so, that a 24 Court would do that in this sort of situation where, 25 if it felt that there was a very good chance these 26 matters could be resolved short of a decision on that 27 point and it's a complicated area with 28 constitutional -- many constitutional corners, we 29 believe we can pass those constitutional corners and 30 satisfy you that it is a valid extinguishment. But on 31 the other hand, do we need to do that and should we do 32 that if it can be resolved otherwise? That's really 33 what I am really saying but we will be arguing. 34 My lords, on the Statement of Facts, I suppose I 35 should be embarrassed to say that the case took 318 36 days, I have a one-and-a-quarter page Statement of 37 Facts, but I will say that in putting this factum 38 together we did our best and we decided that it wasn't 39 humanly possible to review every exhibit and deal with 40 the facts in that manner nor did we think that we 41 needed to. What we felt we could do was that we could 42 simply give you the facts that we believe are 43 important that we rely upon, and say to you as I do on 44 paragraph 2: The Appellants and their ancestors have 45 used the land for many purposes including hunting, 46 fishing, trapping, berry picking and for spiritual and 47 cultural reasons. 1226 Submissions by Mr. Williams 1 3. The Appellants governed themselves and the 2 territory that they occupied in accordance with their 3 own laws, customs and institutions, and they continue 4 to do so. And of course it's subject to the laws of 5 Canada and the laws of the Province of British 6 Columbia. I am talking about internal government 7 there at this point. That's not spelled out as well 8 as it should be. Many of the Appellants and their 9 ancestors -- 10 HUTCHEON, J.A.: I am sorry, but isn't 3 contrary to the Trial 11 Judge? 12 MR. WILLIAMS: I will submit that there is a difference between 13 sovereignty and governments and I will be getting into 14 that. Perhaps that -- the way in which that's 15 expressed is not as accurate as it should be. 16 HUTCHEON, J.A.: It is going to be very important for me to 17 know whether the Province supports the Trial Judge, 18 some of his findings of fact that they lived in a 19 legal and jurisdictional vacuum, acted on survival 20 instincts, et cetera. 21 MR. WILLIAMS: We do not agree with those comments, my lord, but 22 we don't say that those are conclusions that are 23 necessary to the determination of this appeal. 24 HUTCHEON, J.A.: All right. We spent quite a bit of time on the 25 Appellant's side examining those facts, and perhaps it 26 was overdone, but it worried me that they were there 27 and we were told that we couldn't disturb them, that 28 the province isn't attempting to support them. Is 29 that my -- that's unfair to you. You should know 30 exactly what I am talking about, and it's -- perhaps 31 your colleagues could make a note. It is paragraph 32 162 of the Appellant's factum, page 108, where the 33 Trial Judge, his findings are set out. 34 MR. WILLIAMS: I think the problem I am having, my lord, I will 35 come back to that if I may because I am just trying to 36 give an overview at the moment. 37 HUTCHEON, J.A.: All right. 38 MR. WILLIAMS: I think the problem is that there are several 39 areas in which the Learned Trial Judge found there was 40 an organized society, that they did have feasts, that 41 they did do all of these things. It is the 42 conclusions that were drawn from that or the effect of 43 them that may be the problem, and it will take me some 44 time to deal with that. I should say that, in terms 45 of facts, I will be dealing far more extensively with 46 them when I get into the ownership area. So this is 47 an inaccurate overview, I am afraid. 1227 Submissions by Mr. Williams 1 Many of the Appellants and their ancestors used 2 and occupied the land and resources within parts of 3 the territory claimed in their own way and under their 4 own jurisdiction prior to the assertion of sovereignty 5 in 1846. 6 The Appellants have lived a distinctive aboriginal 7 way of life from earliest times to the present. 8 After sovereignty was asserted in 1846, the 9 Imperial Crown -- well, this is some history. The 10 bottom, I say, during the colonial period 13 11 Proclamations or Ordinances were passed, known as 12 Calder I - XIII, establishing a regime for the purpose 13 of conveying estates and interests in land to the 14 settlers coming from Europe to the colony of British 15 Columbia. 16 During the colonial period, pursuant to the 17 authority of the Calder XIII documents and after 18 Confederation pursuant to the Land Titles Act, estates 19 and interests in land were granted to individuals 20 pursuant to that. 21 Crown has never entered into any treaty with the 22 Appellants. 23 My lords, the issues on appeal are on the next 24 page and I won't read them because -- except to 25 explain, my lord, Justice Lambert's comment -- issue 26 number 7, is other defences raised at trial. Those 27 are set forth in tab 11, and they deal with the 28 Respondent Province advancing certain defences 29 including the defence of equitable defence Crown 30 Proceedings Act, the Court is of the view that the 31 parties should negotiate the nature and the scope of 32 the -- well, there they are, and those will be 33 commented on by Mr. Taylor. 34 LAMBERT, J.A.: By who? 35 MR. WILLIAMS: By Mr. Taylor, my colleague. 36 If I may then, I will turn to the next tab, which 37 is tab 4, and simply say that, from the position of 38 the Province, the over-arching question which is posed 39 by the appeal is to what extent the Appellants enjoy 40 unextinguished aboriginal rights in respect of any 41 lands or resources included in the claim area. They 42 frame their appeal on the basis of ownership, 43 governance, and some unspecified rights. 44 I say, in paragraph 2, the Province is of the view 45 that dividing these issues into governance, ownership, 46 and aboriginal rights in the matter proposed by the 47 Appellants obscures the fact that this appeal is 1228 Submissions by Mr. Williams 1 centrally concerned with the nature, extent and 2 consequences of Section 35(1) of the Constitution Act 3 which recognizes and affirms existing aboriginal 4 rights. I should say that, and that 35 may or may not 5 recognize and affirm elements of governance and it may 6 or may not recognize and affirm elements of ownership, 7 et cetera. The section, of course, is that the 8 existing aboriginal and treaty rights of the 9 aboriginal peoples of Canada are hereby recognized and 10 affirmed. 11 Now, my lords, since writing this factum, I have 12 concluded that it is not going to be as helpful to the 13 Court to take what I would say was sort of a positive 14 approach on the legal side of this and say that these 15 are what rights they have, instead of commenting on 16 what rights they don't have. I have changed my 17 position on that, having to reconsider the sort of 18 consolidated approach, and I have concluded that to 19 properly respond and assist the Court, I have to 20 separately address the issues of ownership and 21 self-government or sovereignty, and aboriginal rights. 22 And I do that through the speaking notes that I have 23 handed up. And if I may now, I will explain, if you 24 have the white book, we have what's called a white 25 book to demonstrate the purity of our position, and 26 it's, it has in it letters and numbers. It's called 27 Reference of the Corrected Revised Factum of the 28 Respondent Her Majesty the Queen In Right of the 29 Province of British Columbia, W-l. 30 MACFARLANE, J.A.: W-lone, W for white. 31 MR. WILLIAMS: I'd like to explain how the white book system 32 will work with the notes and the factum, if I may, and 33 it may seem complicated at first but it does work and 34 I think it's probably the best way to do it. 35 You will notice in my factum if you will just turn 36 to page -- to page 6 under tab 5, you should ignore 37 the letters. They don't -- all they are is a way of 38 identifying a heading anyway. The important thing in 39 the factum is the numbers, 5, 6, 7, for instance. 40 That's the paragraph number that appears on page 6. 41 And if you look at the speaking notes that I have 42 handed up, you will see that they are A, B, and C; in 43 other words, the speaking notes, on the first page 44 starts with A; on the second page you will see a B and 45 a C. Now, in the book you will see the A, B, Cs which 46 refer to the speaking notes and the numbers which 47 refer to the factum and I can flip as we go, when I am 1229 Submissions by Mr. Williams 1 dealing with the speaking notes, into these letters 2 and I think that through this manner it will work as 3 smoothly as it can. So I will start, if I may, with 4 the speaking notes. And again, what I have done with 5 the speaking notes in order to try to keep up to 6 assist the Court and to keep my argument in focus is 7 to say in each case, I start with Aboriginal Rights, 8 then I move to Ownership as we get into the factum, 9 and then I move into Self-Government. And what I have 10 tried to do is to set forth in each case the position 11 of the Appellants, the position of this Respondent, 12 and the decision of the Learned Trial Judge so that we 13 have that in front of us before we get into the 14 factum. 15 Now, under A, I say that the Appellant's position 16 on aboriginal rights is unclear. What's been crystal 17 clear until this week is that their claim is for 18 ownership of land. The factum does not appear to 19 advance a claim for aboriginal rights short of 20 ownership, although there is one paragraph, and I have 21 taken from that, it's in the white book under page 22, 22 I don't think I need to take you to it, it says that a 23 declaration that the aboriginal rights of the 24 Plaintiff, including ownership of the jurisdiction 25 over the territory, are recognized and affirmed by 26 Section 35 of the Constitution Act. I don't know 27 whether that's properly pleaded as a claim for 28 aboriginal rights in general but we do know that the 29 Learned Trial Judge said this, at page 210. He said: 30 31 "While all or most of the Plaintiffs' allegations 32 are framed in terms of ownership and jurisdiction 33 I have already said that I understand such claims 34 also include lesser aboriginal interests." 35 36 We also know that the Appellants appeared to 37 change their position on February 12 of 1988 38 moderating the original claim for all or nothing 39 ownership and I should turn you to that one because 40 that's -- that's under tab A and I think it's the 41 third one in. It's page 158. Line 21, page 158, line 42 21, and what is said is that: 43 44 "I find that a claim for the aboriginal rights 45 other than ownership and jurisdiction is also 46 open to the plaintiffs in this action." 47 1230 Submissions by Mr. Williams 1 In the previous page, if you will just flip back to 2 157, page just before that, what is -- what the Trial 3 Judge says is: 4 5 "In the early stages of the trial plaintiffs' 6 counsel indicated that this case, unlike Calder, 7 was 'all or nothing', that is, the claim was for 8 ownership and jurisdiction, and the plaintiffs 9 were not seeking any lesser relief. The position 10 was wisely moderated later in the trial when 11 Mr. Grant made it clear the plaintiffs were also 12 seeking a declaration of their aboriginal rights. 13 He said that while the ownership and jurisdiction 14 were the plaintiffs' primary claims, they wished 15 the court to grant them whatever other rights they 16 may be entitled to." 17 18 Oh, I am sorry, these -- I am just reminded that 19 these are not side-barred so I should give you the 20 line where I can -- I don't know whether your 21 lordships followed that last reference, page 157, the 22 second last paragraph and over on page 158, it's just 23 before half-way down the page. I am sorry. 24 25 "I find that a claim for aboriginal rights other 26 than ownership and jurisdiction is also open to 27 the plaintiffs in this action." 28 29 Now, I understand on Monday, I wasn't in court on 30 Monday, but on Monday, in response to a question from 31 the Bench that the Appellants appeared to have changed 32 their position by now stating that they are seeking an 33 interim declaration to a non-exclusive right to 34 harvest, manage, and conserve resources within the 35 claimed territory, I say this, my lords, on that 36 matter: That it was the Appellants who insisted on 37 bringing this question of ownership before the Court 38 on the basis that they could not go and negotiate 39 unless they knew if they owned the land. That was one 40 of the positions. And I say that, since they made it 41 an imperative, that the question of ownership be 42 determined for future reference, I submit that the 43 Court should decide the issue of ownership in this 44 appeal and then deal with the question of aboriginal 45 rights. So I ask the Court to make a determination of 46 ownership. 47 Under B, it is the position of the Province that, 1231 Submissions by Mr. Williams 1 while the Appellants don't have ownership rights with 2 respect to the land they claim, they have aboriginal 3 rights thereto and those rights have been best 4 expressed, in our submission, as a "sui generis 5 interest in respect of land", and I will deal in more 6 detail with that because it is a very broad sweeping 7 statement at the moment. This is a right that is 8 highly context and use specific. It's a right to use 9 or occupy lands, including engaging in practices that 10 were an integral part of their distinctive culture at 11 the date of sovereignty. 12 Now, there are several ways of looking at a sui 13 generis interest in respect of land, my lords, and I 14 have to say that we appear in this case in many areas, 15 including this one, to be breaking new ground, and 16 it's -- the courts have had to do this many, many 17 times before but we do have some guidance from the 18 Supreme Court of Canada. However, what the nature of 19 a sui generis interest in respect of land is is not 20 something that has been settled. It can be looked at 21 in several ways, my lords. One of them is to say that 22 there is one aboriginal right and it is to do whatever 23 aboriginal people did, self-governance, land, hunting, 24 fishing, all of those things. There is one right. 25 Another way of looking at it, and of course if that is 26 true, then there is a question raised as to whether or 27 not the right to self-government is inherently 28 entrenched in Section 35 of the Charter, but we know 29 from everything that's happened that nobody believes 30 that it is. It is not entrenched because they are 31 trying get it entrenched now, so whatever that 32 aboriginal right included in Section 35, it couldn't 33 have included self-government or people wouldn't be 34 now negotiating to put self-government in. 35 WALLACE, J.A.: Well, unless they took the position that it 36 might have been extinguished or there might be doubt 37 about it or so forth. 38 MR. WILLIAMS: Yes. I suppose it may have been — 39 WALLACE, J.A.: I don't think the inference can be drawn that, 40 because they wish to have this specific inclusion now, 41 that it didn't -- that it was necessarily not existing 42 prior to this time. 43 MR. WILLIAMS: No. I think — I suppose where I — where I 44 became concerned about this and I started looking at, 45 not only the legislation and what was behind it and 46 what has happened since, but the establishment of 47 these conferences that are within the Constitution 1232 Submissions by Mr. Williams 1 that were held with the Prime Minister, all discussed 2 a right, an inherent right, to self-government and 3 nowhere does it even suggest or did anyone even 4 suggest that that's already been granted or that it's 5 been extinguished. It just seems as though it's out 6 there on its own, and I don't know what the answer is. 7 I don't purport to say. I just raise that as a 8 problem. I do say though that aboriginal rights, 9 whatever may be included in them other than that -- 10 oh, and indeed I will be saying later on, my lords, 11 that perhaps we have to say to ourselves that a 12 modicum of self-government rights are included in 13 Section 35 to the extent that they are absolutely 14 necessary to deal with the land rights, or the fishing 15 rights. But that's for later. What I say now is that 16 you can say that there is an aboriginal right to use 17 and occupy the land and that raises the next question: 18 But for what, what can be included in that; hunting, 19 fishing, residing in the village, cultivating the 20 field, pick berries, doing all of the things that were 21 an integral part of their culture brought into a 22 modern context, of course, but doing all of the things 23 that were an integral part are part of that aboriginal 24 right to use and occupation. 25 The other way of looking at it is that these are a 26 bundle of individual rights and there's a right to 27 hunt and there's a right to fish and there is a right 28 to pick berries and there's a right to cut trees for 29 canoes and totem poles and alike, and so on. And I am 30 not sure that, as we get into the argument later I 31 will be discussing this further, I am not sure that 32 this Court needs to make the decision on that point, 33 but I just raise them now to say that when we speak 34 about aboriginal rights sometimes different people are 35 thinking about different things and what we have tried 36 to do is to call this a sui generis interest in 37 respect of land. 38 Madam Justice Wilson, in the Roberts v. Canada 39 case, the Dick case, had this to say: 40 41 "This court recognized aboriginal title as a legal 42 right derived from the Indians' historic 43 occupation and possession of their tribal lands... 44 The Indians' right of occupation and possession 45 continued as a burden on the radical or final 46 title of the sovereign." 47 1233 Submissions by Mr. Williams 1 I say, my lords, that the statement by Madam 2 Justice Wilson means that the aboriginal title was not 3 an ownership right but, rather, a burden on the Crown 4 essentially for occupation purposes. 5 Now, the Trial Judge, while holding the 6 Appellant's rights had been extinguished, did find 7 that they had established the requirements for 8 aboriginal rights. He said: 9 10 "Subject to what follows, the Plaintiffs have 11 established as of the date of the British 12 sovereignty the requirements for continued 13 residence in their villages and for non-exclusive 14 aboriginal sustenance rights within those portions 15 of the territory I shall later define..." 16 17 Now, his conclusion as to what was included or his 18 specific view of the difference between village sites 19 or the way of characterizing it may be one we differ 20 with, but he did find the existence of aboriginal 21 rights, at least in that regard. And the white book, 22 on page -- this is under tab C, set forth under page 23 392, that's the first one, in his view, of the 24 sustenance issue, and he says that -- he says, further 25 down, this is the next paragraph after the half-way 26 point: 27 28 "As I understand the authorities, subject to what I 29 shall say later in this judgment, and subject to 30 the requirements I have already described, the law 31 has protected the right of aboriginal groups to 32 continue to use 'traditional' lands for these 33 purposes . " 34 35 And of course these purposes as read above: 36 37 "In my view the purpose of aboriginal rights..." 38 39 This is the paragraph just above that, the second 40 sentence: 41 42 "In my view the purpose of aboriginal rights was to 43 sustain existence in an aboriginal society, that 44 is, to hunt and fish and collect the products of 45 the land and waters for the survival of the 4 6 communal group. There would undoubtedly be some 47 bartering but that would be in sustenance products 1234 Submissions by Mr. Williams 1 likewise obtained by aboriginal practices." 2 3 So that was his finding in respect of the 4 aboriginal rights in that regard. I don't think I 5 need to take you through the other page references 6 there. They are there if you wish to look at them. 7 The Trial Judge then said that, in case he was wrong 8 on his conclusion about extinguishment, in case he had 9 erred there, he'd be delineating the area within the 10 territory which was subject to aboriginal rights at 11 the date of British sovereignty prior to 12 extinguishment and, as you know, he decided, and the 13 quote is here, I needn't take you to the book, the 14 foregoing leaves untouched the conclusion I expressed 15 earlier that, subject to extinguishment, the 16 Plaintiffs were entitled to aboriginal rights to some 17 part of the territory for the benefit of these people. 18 The external boundary is now artificial but it fixes 19 the outermost extent of the lands to which I could 20 make a declaration of aboriginal rights in this case. 21 The question is where to draw the line. It will in 22 this respect necessarily be arbitrary. The Trial 23 Judge then concluded from the alternatives that it 24 would be Map 5. 25 Now, I should say this: The Respondents have 26 elected to use the phrase "aboriginal rights" as 27 opposed to "aboriginal title" and we were criticized 28 for that by my learned friend Mr. -- the Appellants 29 criticized us for that. The only reason I did that, 30 my lords, was to try and make sure it didn't get 31 confused with what we tend to think about as title. 32 Title we often think about in something that's a 33 document that gives you a right to the land, and a 34 right that is different from an aboriginal right, I 35 say. So I tried to avoid the use of it so as to not 36 have that confusion, and I notice that the Learned 37 Trial Judge in this case, throughout his judgment he 38 makes numerous references to Indian interests, Indian 39 title, aboriginal title, and aboriginal rights. And 40 while the aboriginal interest term appears to be a 41 little broader, he does make the statement and it's 42 recorded below: 43 44 "Indian title is commonly used interchangeably with 45 aboriginal rights as I have attempted to define 4 6 them." 47 1235 Submissions by Mr. Williams 1 Aboriginal interests, though, he says are 2 something a little broader. And that's at the white 3 book at page 209. If you just flip through the green 4 sheets you will come to page 209. He says: 5 6 "I can dispose of this submission quickly." 7 8 That's not the one. No, I am sorry, it is right just 9 the page behind that, 129. It says: 10 11 "Aboriginal Interest. 12 This is a term I shall use in a neutral, 13 descriptive sense to describe any unspecified 14 aboriginal right. I do not believe there is any 15 aboriginal interest additional or different from 16 the other 'interests' I have defined. It is 17 merely a shorthand term of convenience which 18 I shall use when precision is not required." 19 20 So perhaps we have to be -- I raise that only 21 because we have to be cognizant of what the Learned 22 Trial Judge is saying when he is dealing with these 23 issues in the judgment, but I believe that generally 24 speaking when we are talking about all of these terms, 25 perhaps apart from that one, they are being used 26 interchangeably. 27 Now, I want to read from the top of page 4: 28 29 "The authorities make it clear that aboriginal land 30 claims must be considered in their historical 31 context. I conclude it would not be safe to 32 assume that confident statements made by Dominion 33 officials about 'Indian title' should always be 34 accepted as correct statements of law. 35 36 Similarly, the denial of the provincial officials 37 cannot be so construed. These gentlemen were 38 defending positions to which they were committed." 39 40 And then he says below that: 41 42 "It seems to me there has always been much 43 uncertainty about the true nature of 'Indian 44 title' in the Province. Even some Indians have 45 not always been completely consistent, because 46 there are references in the historical record to 47 suggestions that enlarged reserves were their 1236 Submissions by Mr. Williams 1 primary concern." 2 3 The Trial Judge then explains the approach to 4 analysing the evidence and the findings of fact. And 5 that may be of some importance. It is at the white 6 book at 334 lines -- line 15. That would be quite 7 near the end, it is the third page in, and he says: 8 9 "As already mentioned, I do not consider myself 10 bound by historical statements made either by 11 Indians or Crown officials about questions of law. 12 I am not persuaded any of them spoke with a 13 complete understanding of either the law or the 14 facts..." 15 16 and et cetera. 17 18 "For example, these men all spoke without the 19 assistance of authorities such as Calder, Guerin and 20 Sparrow..." 21 22 et cetera. He says: 23 24 "My responsibility..." 25 26 This is reading from the second paragraph: 27 28 "My responsibility is to apply the present law to 29 the facts as I understand them. I do not propose 30 to attempt a reconciliation of all the different 31 views and activities of the Indians..." 32 33 et cetera, et cetera. That sets forth approach that 34 he took and he declared -- I say in my last point on 35 this page he declared a lack of enthusiasm for the 36 American authorities. I don't know that I need to 37 take you to that. It's there in the Reasons for 38 Judgment. He certainly does show -- perhaps that's 39 the nicest way of putting it -- as a lack of 40 enthusiasm for those authorities and I will deal with 41 that of course later on. 42 And that takes me to my factum, from these notes 43 to the factum at page 6, paragraph 5, and I will be 44 following the factum now right through to paragraph 45 49. 46 My lords, the first point that I wish to make is 47 that aboriginal peoples in Canada, by virtue -- this 1237 Submissions by Mr. Williams 1 is under the General Principles relating to Aboriginal 2 Rights. Aboriginal peoples in Canada, by virtue of 3 their historic occupation and possession of tribal 4 lands enjoy particular aboriginal rights in Canadian 5 law. That's Guerin, that's our Chief Justice, that 6 was 1984, and I don't think there is any quarrel with 7 it. 8 I submit that the key phrase there is the historic 9 occupation of the tribal lands. That, to me, is the 10 key phrase of how to identify what it was that the 11 right consisted of pre-sovereignty. 12 An aboriginal right provides legal recognition of 13 and protection to aboriginal differences and it 14 protects activities integral to particular aboriginal 15 communities. And then I will go right to the quote 16 which I rely on very heavily throughout my factum and 17 it's this: 18 19 "The anthropological evidence relied on to 20 establish the existence of the right suggests 21 that, for the Musqueam, the salmon fishery has 22 always constituted an integral part of their 23 distinctive culture." 24 25 That phrase I will come back to several times because 26 I consider it to be perhaps the most helpful of the 27 phrases that can be used and I will be comparing it 28 with a long, long time and sovereignty and contact and 29 other dates. I say that an integral part of their 30 distinctive culture is the key to what is and what is 31 not an aboriginal practice. 32 33 "The Musqueam have always fished for reasons 34 connected with their culture and physical 35 survival." 36 37 Paragraph 7, I say, the aboriginal rights existed 38 as legal rights prior to colonization and settlement 39 of North America by Europeans. The existence of 40 aboriginal rights doesn't depend on British Columbia 41 or British law or Canadian law, but the fact that 42 prior to contact people lived in an organized society 43 on the North American continent, and there are a 44 number of cases that set that out and the references 45 are there. 46 Prior to 1982, aboriginal rights were only 47 recognized by colonial and then Canadian law as common 1238 Submissions by Mr. Williams 1 law rights, as first and foremost common law rights to 2 the land including common law rights to engage in 3 certain activities. And Professor Peter Hogg said, 4 "the doctrine of Parliamentary supremacy...meant that 5 native rights were vulnerable to change or abolition 6 by the action of the competent legislative body". 7 Again, I don't think there is much argument there but 8 I say this, my lords, that these rights, which include 9 the right which I describe as a sui generis interest 10 in respect of land, all stem from the fact that they 11 occupied or used certain tracts of land and organized 12 themselves into a society with whatever form of 13 self-government they then had in their own traditional 14 way. And that's before the assertion of sovereignty. 15 But it must be noted that those rights in the Canadian 16 legal context were not of a very high value until 1982 17 because if Her Majesty in clear and plain intent 18 wanted to, she could extinguish them. 19 Now, assuming that the right to self-government 20 was not included in 1982, it may or may not be 21 constitutionalized in the months that lie ahead but in 22 common law they were -- while these were not of high 23 value, they could still be utilized and have been 24 utilized for a number of very valuable purposes to the 25 native people, but they could also be regulated or 26 extinguished. 27 Now, as we know the common law was not considered 28 the sole source of these aboriginal rights, they are 29 also said to have arisen from the Proclamation of 1763 30 and there are other statutes and other ways in which 31 aboriginal rights are said to have arisen. What we 32 say however that we will be dealing with in this 33 factum, because we do not agree that the Royal 34 Proclamation applies in British Columbia, we will be 35 dealing, when we talk about aboriginal rights, with 36 those aboriginal rights which came from the source 37 preceding contact and preceding sovereignty. 38 Since 1982, there's been dramatic 39 transformation -- I am at paragraph 10 -- by which the 40 way the Canadian law conceives of and protects 41 aboriginal rights. Aboriginal rights in existence as 42 of 1982 are recognized and affirmed by Section 35(1) 43 of the Constitution Act, and as a result they 44 currently enjoy constitutional status in Canadian law. 45 Laws which unduly interfere with the exercise of 46 aboriginal rights must meet constitutional standards 47 of justification. I then say aboriginal title has 1239 Submissions by Mr. Williams 1 been misinterpreted. We have already dealt with that 2 point. 3 Chief Justice Dickson, at the bottom of that page, 4 and Justice LaForest, by giving aboriginal rights 5 constitutional status, this is what they said, and 6 priority, Parliament and the Provinces have sanctioned 7 challenges to social and economic policy objectives 8 embodied in legislation to the extent that aboriginal 9 rights are affected. 10 Again, in the words of the Chief Justice Dickson, 11 and I will just skip down here. The element of -- 12 enactment of Section 35(1) signals that Canada 13 acknowledges the constitutional importance of a prior 14 indigenous presence on the North American continent 15 and recognizes the rightful place of aboriginal people 16 in the Canadian constitutional landscape. I think it 17 has to be remembered, in terms of looking at 18 aboriginal rights, that if the government of Canada 19 and the government of the provinces agreed to 20 constitutionalize aboriginal rights, they must have 21 existed and they must have had some value irrespective 22 of the ease with which they could be disposed of by 23 extinguishment perhaps. They had value or we wouldn't 24 here be talking about it, and I think that's one of 25 the most important things about the 26 constitutionalizing of those rights. 27 Section 35(1) authorizes the judiciary to define 28 aboriginal rights and to assess the constitutional 29 validity of the laws that impair existing rights. 30 Aboriginal rights, however, are as much the function 31 of negotiation and consent among affected parties 32 through a modern day equivalent of treaty-making. And 33 if you look at 35(3) you see that: 34 35 "For greater certainty, in subsection (1) 'treaty 36 rights' include rights that now exist by way of 37 land claims agreements or may be so acquired." 38 39 And that is more than just a hint that the framers of 40 the Charter and the Constitution know that there will 41 be matters that will be negotiated by agreement and 42 therefore will receive constitutional status. 43 WALLACE, J.A.: I understand that with respect to treaty rights 44 but I have difficulty with your statement that 45 aboriginal rights can be the function of negotiation 46 and consent equivalent to a treaty-making process. 47 MR. WILLIAMS: No, I say that aboriginal rights which existed in 1240 Submissions by Mr. Williams 1 1982 are clearly constitutionalized. I don't think 2 there is any argument about that. I am saying that, 3 once the dispute about what that means has been 4 resolved and put into a treaty, that too can be 5 constitutionalized. 6 WALLACE, J.A.: Well, they are treaty rights then. 7 MR. WILLIAMS: Well, they are treaty rights but they are more 8 than the kind of treaty rights that can be jumped on 9 by a legislature. They are rights that are caught by 10 the Constitution. 11 WALLACE, J.A.: Under Section 35. Yes. 12 MR. WILLIAMS: Yes. That's all I meant. 13 Equally in 35.1 of the Constitution Act, it 14 commits the government of Canada and the provincial 15 governments to invite aboriginal participation in any 16 future delineation of the nature and scope of the 17 aboriginal rights. And I think, without reading that 18 out in total, it says: 19 20 "A constitutional conference that includes in its 21 agenda an item relating to the proposed amendment, 22 composed of the Prime Minister of Canada and the 23 first ministers..." 24 25 et cetera. 26 27 "The Prime Minister of Canada will invite 28 representatives of the aboriginal peoples of 29 Canada to participate in the discussions on that 30 item." 31 32 And we know -- I think it is notorious since that time 33 what has occurred and what is occurring even in last 34 night's paper with a new hope suggestion that we have 35 an agreement; that we get hope one day and 36 disappointment the next. 37 The nature and scope of the protection that 38 Section 35 affords to the aboriginal people involves a 39 complex mix of considerations, and this is where I 40 think I can say it in a nutshell and I think there is 41 judicial support for this, that this Court should feel 42 very comfortable, in my respectful opinion, in 43 endeavouring to determine what the right means and 44 indeed to a certain aspect the nature of the right, a 45 definition of the right, or at least a description of 46 it, what it means but without getting into the scope 47 of the right, because when we are dealing with the 1241 Submissions by Mr. Williams 1 scope of the right, the difficulty is we need more 2 facts and we need more specific references than we 3 have here. You can say that, on the facts of this 4 case as the Learned Trial Judge said, the facts did 5 not support what the Appellants argued and therefore 6 the case is dismissed, but I am talking about going 7 beyond general principles into areas that were not 8 really the subject of this case. And I am saying that 9 the judiciary plays an important role in determining 10 the aboriginal rights, but it is not the only 11 institution charged with dealing with those rights. 12 The court stated this, in Sparrow: 13 14 The government has the responsibility to act in a 15 fiduciary capacity with respect to aboriginal 16 peoples. The relationship between the government 17 and the aboriginals is trust-like, rather than 18 adversarial, and contemporary recognition and 19 affirmation of aboriginal rights must be defined 20 in light of this historical relationship. 21 22 And also in Guerin at 376, and I do want to turn that 23 one up, and that's in tab 14, the second page in, top 24 of the second paragraph in tab 14. I think this is a 25 very important statement. It says: 26 27 "The fiduciary relationship between the Crown and 28 the Indians has its roots in the concept of 29 aboriginal, native or Indian title." 30 31 So that these concepts are really tied together, and 32 someone who is in the position of the Crown, federal 33 or provincial, of course it has an obligation to argue 34 in a courtroom that a claim is wrong but equally, I 35 submit, it has an obligation, not in the adversarial 36 way, to say these are our enemies, we have to fight 37 because it's there. They have an obligation to 38 endeavour to establish a legal framework through the 39 courts that will permit a sensible negotiation system 40 to be established and a treaty process to be 41 established. 42 My lords, I next quote that wonderful 43 organization, the Canadian Bar Association, not as an 44 authority at all, but simply to say that the task 45 force observed -- that, while the courts may be useful 46 to decide some native issues to bring pressure on the 47 parties to settle by some other means, judicial 1242 Submissions by Mr. Williams 1 adjudication will not provide all of the answers to 2 the issues surrounding the native claims. And that 3 was a view of a well put together task force of 4 natives and non-natives that were looking at how these 5 disputes could be resolved. 6 The judicial role, initially, is to establish 7 broad constitutional principles for context-specific 8 determinations of the scope and the content of 9 aboriginal rights. These principles will serve to 10 guide the aboriginal people and governments alike into 11 determining what the precise nature of the respective 12 rights will be. 13 And, my lords, at the outset of this appeal, I 14 made the statement that we were all involved in the 15 treaty-making process, and what I meant by that was 16 not that this Court is expected to make a treaty, but 17 that what is happening in this province and in this 18 country today is that cases such as this are serving 19 as the beacons and the guidelines so that the 20 treaty-making process can go forth and that's what I 21 intended to convey when I said that. 22 I say, in paragraph 17, that this unique mix of 23 adjudication and negotiation involved in the 24 delineation of the scope has been noted in several 25 cases, in Sparrow, where Chief Justice Dickson and 26 Justice LaForest stated Section 35 "provides a solid 27 constitutional base upon which subsequent negotiations 28 can take place". Now, that reference is one I should 29 probably turn up. It's at 406 under tab 17, first 30 page in: 31 32 "...provides a solid constitutional base upon which 33 subsequent negotiations can take place." 34 35 The next page, and it's, my lords, Justice MacFarlane 36 in the MacMillan Bloedel v. Mullin case, where he 37 says, on page 607, and this is just after the first 38 green sheet. He says, about two-thirds of the way 39 down, if you are with me, my lords, the paragraph 40 starts: 41 42 "The fact that there is an issue between the 43 Indians..." 44 45 And then about two-thirds of the way down that 46 paragraph: 47 1243 Submissions by Mr. Williams 1 "I think it fair to say that, in the end, the 2 public anticipates that the claims will be 3 resolved by negotiation and by settlement. This 4 judicial proceeding is but a small part of the 5 whole of a process which will ultimately find its 6 solution in a reasonable exchange between 7 governments and the Indian nations." 8 9 And that's probably as well as it has ever been said 10 but it has been said since Calder that that's true. 11 And we say it in spades here. 12 The Reasons for Judgment, of course, the Learned 13 Trial Judge made the same observation at page 119, 14 which is the next one in, in the white book. He says, 15 third paragraph down: 16 17 "The judgment which I must pronounce on legal 18 issues does not preclude an important political 19 and social responsibility that may only be 20 discharged by the governments. I shall presume to 21 mention this from time to time in these reasons 22 for judgment." 23 24 Which, of course, he does. 25 Now, the next paragraphs I am going to skip over 26 because my colleague Mr. Arvay will deal with 27 paragraphs 18 and 19 in the remedies area. And that 28 brings me to paragraph 20. I say that, under Proof of 29 Aboriginal Rights, I suppose we start really with 30 Baker Lake. And in the Baker Lake case, if I can turn 31 you to that, it's page 557, so it's the first thing 32 under tab 20, and it's the bottom of that page, and 33 just to be reminded of what those -- I know that it's 34 been read to you many times, but just to be reminded 35 of what those tests are: 36 37 "1. That they and their ancestors were members of 38 an organized society. 39 2. That the organized society occupied the 40 specific territory over which they assert the 41 aboriginal title." 42 43 Those are still, I think, two very sound propositions. 44 The third one: 45 46 "3. That the occupation was to the exclusion of 47 other organized societies. 1244 Submissions by Mr. Williams 1 2 That, it seems to me, has been altered. And: 3 4 "4. That the occupation was an established fact at 5 the time sovereignty was asserted by England." 6 7 And we will have more to say about that. The Learned 8 Trial Judge did and I will too on behalf of my client. 9 HUTCHEON, J.A.: Didn't Mr. Hutchins tell us yesterday that that 10 was displaced by Bear Lake? 11 MR. WILLIAMS: Well, Bear Lake — I don't think Bear Lake 12 disposed -- 13 HUTCHEON, J.A.: Well, you can deal with it but my recollection 14 is we were told yesterday that the Baker Lake -- 15 MR. WILLIAMS: Bear Island. 16 HUTCHEON, J.A.: Bear Island. 17 MR. WILLIAMS: Well, Bear Island certainly refers to it. I 18 think the case is in here somewhere. But I suppose 19 what I am saying is I didn't think there was any 20 change in the fact that they or their ancestors had to 21 be members of an organized society. 22 MACFARLANE, J.A.: I can remember that in argument twice over 23 during the -- since last October, at least twice over, 24 that Bear Island displaces Baker Lake and we have had 25 an argument on the other side, that it does not. 26 MR. WILLIAMS: Well, I will — 27 MACFARLANE, J.A.: So it has been an issue and it's an issue 28 that's undecided, and Mr. Hutchins again yesterday 29 made that argument about Bear Island, so that's the 30 reference. 31 MR. WILLIAMS: Thank you, my lord. I will certainly come back 32 to you on that. I am content at this point at least 33 that the first two parts of the Baker Lake test are 34 clear and should be adopted. I am saying that there 35 is no longer a need for exclusivity, I think even the 36 Trial Judge agrees with that, and I say that, with 37 respect to the last ones, while I am dealing with it, 38 although I will be having more to say later, that the 39 occupation was established in fact at the time of 40 sovereignty, the difficulty with that is that, while 41 there may have been no problem up at Baker Lake, no 42 difference between contact and sovereignty, if you 43 were to leave it at that for everywhere else including 44 the Appellants' area, what could you say by the time 45 sovereignty came along, so much had changed in many 46 areas. I mean, is drinking whisky an aboriginal 47 right, you know. That's something that they may have 1245 Submissions by Mr. Williams 1 learned between contact and sovereignty; doesn't make 2 it an aboriginal right. It would be silly to say that 3 things that happened between contact and sovereignty 4 necessarily became an aboriginal right. If you go 5 back to the date of contact itself, which is a 6 tempting thing to do, there are some pretty difficult 7 problems in establishing what they were on and making 8 perhaps too firm a rule. That is why we have adopted 9 the position, was it an integral part of their 10 distinctive culture and, on a case-by-case basis, it 11 seems to me that that test can be applied and that 12 test can be applied much more sensibly and responsibly 13 than just saying, well, what happened at the date of 14 sovereignty, or what happened at some other date, or a 15 long, long time. 16 LAMBERT, J.A.: When do you ask whether it was an integral part 17 of their distinctive culture? As of which date do you 18 pose that question? 19 MR. WILLIAMS: At the date of sovereignty. 20 LAMBERT, J.A.: As at the date of sovereignty? 21 MR. WILLIAMS: Yes, at the date of sovereignty. If, at the date 22 of sovereignty, someone tried to advance, well, I can 23 go back -- can't think of it better -- drinking whisky 24 which they acquired, let's assume, from the settlers, 25 is an aboriginal right, it would be silly, it seems to 26 me, to suggest that it was. On the other hand, if 27 there -- let's say trading of fur, and I will be 28 coming to this fur-trading issue later. If they are 29 trading fur, if they trapped, as they used to prior to 30 contact, and if they are trading that fur for a Hudson 31 Bay blanket rather than for some oolichan grease, and 32 it's for sustenance use purposes, not a commercial 33 activity, we will be coming to this later, then why 34 not? If they are hunting with the gun rather than a 35 bow and arrow, why not? It is still hunting but with 36 a modernized technique. So what I am trying to say is 37 that, if the actual -- if the actual -- and again, we 38 get down to this problem of what is -- is there a 39 right to cut a tree or is it part of a right to occupy 40 and use. But if we are saying that we are wanting to 41 look at the practice, the specific practice that took 42 place, the question it seems to me to ask is, was that 43 a distinctive part of their culture, was that an 44 integral part of their distinctive culture. 45 WALLACE, J.A.: The question I raised before concerning was that 46 relating to gambling and running and operating a 47 casino. You may think about something in doing that. 1246 Submissions by Mr. Williams 1 MR. WILLIAMS: Well, you know, I have -- in this case, there's 2 no evidence of casinos ever having been operated. 3 WALLACE, J.A.: Gambling was quite a common practice 4 traditionally engaged in by the native population 5 pre-contact or at the time of contact. 6 MR. WILLIAMS: Well, if we looked — I don't recollect in this 7 case that the evidence there, but if we can both deal 8 with each other on a hypothetical level, you know, if 9 it was clear that they used to gamble extensively 10 pre-contact and they continued to gamble but instead 11 of using moose hides or their measures that they used 12 to have, they used money instead of moose hides, I 13 would have to say, in keeping with what I have said, 14 that, yes, the practice was a part of their 15 distinctive culture. 16 WALLACE, J.A.: Than operating a casino as a modern way of -- 17 MR. WILLIAMS: I am jumping ahead but I think maybe there is no 18 answer to this question. It's a very tough one, and 19 one answer is, well, if they used to trade furs which 20 they did pre-contact, there is no doubt they traded 21 furs, there's no doubt that they traded furs for 22 whatever they could get for them so they could assist 23 themselves, but if somebody organized a band of 24 Indians to go in and just trap out hundreds and 25 hundreds and hundreds of furs for the sole purpose of 26 selling them on the Japanese market, I think the line 27 has to be drawn somewhere, and I say that, well, you 28 can always argue, well, can't draw the line, they were 29 allowed to trap furs, they can trap what they want. I 30 say that maybe Madam Justice Wilson has the answer in 31 the Dick case or the Roberts case, and we are coming 32 to that, where she says you look at the purpose. If 33 the purpose was to trade in furs or fish for 34 themselves for enough money to buy a canoe or 35 whatever, that's part of the practice. But if it's 36 clearly set up for a commercial purpose, it's not. 37 And that's one place the line can be drawn but I 38 acknowledge when I say that that there is no place 39 that it can be easily drawn. 40 MACFARLANE, J.A.: Could I just take you back to the Baker Lake, 41 Bear Island problem that Mr. Justice Hutcheon 42 mentioned and tell you that the note that I made when 43 Mr. Hutchins was making his submissions is that he 44 says that, on the basis of Bear Island, all the 45 Indians need establish is that they exercise 46 sufficient occupation of the lands throughout the 47 relevant period. 1247 Submissions by Mr. Williams 1 MR. WILLIAMS: Yes. 2 MACFARLANE, J.A.: And those are words from Bear Island in the 3 Supreme Court of Canada. And he says that the result 4 of the Supreme Court of Canada's treatment of Baker 5 Lake is that they say, well, that's enough. That's 6 his argument. The other argument is that, which I 7 won't go into, which was made by Ms. Koenigsberg 8 earlier in one of the other cases in the fall, was 9 that that statement by the Supreme Court of Canada 10 about Baker Lake, it does not have the effect of 11 altering the application of the principles in Baker 12 Lake. 13 MR. WILLIAMS: Well, my lords, I will take a good look at this 14 over the weekend and I will come back with a good 15 answer or I will pass the puck to somebody else. 16 MACFARLANE, J.A.: Nobody is suggesting you have got to answer 17 it. 18 MR. WILLIAMS: The way I read that, the sufficiency — the way I 19 read that was that it limited the need for 20 exclusivity. I interpreted that as meaning that you 21 would still take the first two parts of Baker Lake and 22 you would still say -- 23 HUTCHEON, J.A.: You don't have to prove they are members, I 24 think. 25 MR. WILLIAMS: -- that their ancestors were, well, members of an 26 organized society; that they were an organized 27 society. 28 MACFARLANE, J.A.: I think Mr. Hutchins said that — 29 acknowledged that he had to prove there was -- you 30 only have to look to the organized society to be 31 satisfied that the rate is communal. That's the note 32 I took. That's not what he said. That's my -- my 33 shorthand. 34 MR. WILLIAMS: I am sorry, my lord. 35 MACFARLANE, J.A.: That's my shorthand. You look at the 36 organized society to see that the rate is communal and 37 you look at it, as I understand it, to determine 38 whether there was a society in existence regime which 39 recognized the right about which we are talking 40 because that's an essential feature, and that's Baker 41 Lake. 42 MR. WILLIAMS: Baker Lake also says that the organized society 43 had to occupy the specific territory over which the 44 assertion was made. I would have thought that's 45 essential. 46 MACFARLANE, J.A.: Yes. I think that also was part of Mr. 47 Hutchins' advance, if you want to put it that way. 1248 Submissions by Mr. Williams 1 MR. WILLIAMS: And the fourth one, the occupation, was an 2 established fact at the time of sovereignty whether 3 you leave it there or whether you take my suggestion 4 and say integral part of culture. One of those has to 5 be present. I will take a look at that. 6 LAMBERT, J.A.: Before you adjourn for lunch, the one you are 7 saying is -- you think is not a part of the test is 8 that the occupation was to the exclusion of other 9 organized societies. 10 MR. WILLIAMS: Yes. 11 LAMBERT, J.A.: But let me say this: If the right that's being 12 asserted is a right to occupy, then I accept that. If 13 the right that's being asserted as an aboriginal right 14 is a right to the exclusive occupancy of the 15 territory, then I would have thought you would have to 16 show exclusive occupancy as a practice. 17 MR. WILLIAMS: Yes, my lord. I would agree with that if I may 18 just say this before we break. What I will be saying 19 later in the argument as it develops, what I will be 20 saying is this: that exclusivity is one of the 21 factors you look at to see how much protection the 22 right deserves, if I can put it that way. If you did 23 have and were able to prove that you had -- maybe the 24 Haidas, for example, in Jack Woodward's presentation, 25 if you had absolute proof that you had exclusive use 26 of this forest, you were the only ones there since 27 time immemorial and you had good proof of that, that 28 gives you much higher protection than if you shared it 29 with someone else. It doesn't mean that their right 30 disappears or that theirs has been extinguished, but 31 it adversely affects how much protection you can be 32 given for it. In other words, exclusivity is not 33 essential to establish the aboriginal right but it 34 certainly weakens what you have got if you didn't have 35 an exclusive. 36 LAMBERT, J.A.: It describes the nature or scope of the right. 37 MR. WILLIAMS: Exactly. 38 LAMBERT, J.A.: The characteristics of the right. 39 MR. WILLIAMS: Thank you, my lords. 40 TAGGART, J.A.: All right. Two o'clock. 41 42 43 44 45 46 47 1249 Submissions by Mr. Williams 1 THE REGISTRAR: Order in court. This court stands adjourned. 2 3 NOON RECESS 4 5 I hereby certify the foregoing to 6 be a true and accurate transcript 7 of the proceedings transcribed to 8 the best of my skill and ability. 9 10 11 12 13 14 Tannis DeFoe, 15 Official Reporter, 16 UNITED REPORTING SERVICE LTD. 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 1250 Submissions by Mr. Williams 1 (PROCEEDINGS RECONVENED AT 2:00 P.M.) 2 3 THE REGISTRAR: Order in court. 4 TAGGART, J.A.: Yes, Mr. Williams. 5 MR. WILLIAMS: Thank you, my lords. My lord, on the — I was at 6 the Baker Lake thing, and I may have to come back to 7 this on Monday because I have not been able to track 8 down everything I wanted, but I think I can say at 9 this point that in the Bear Island case the quote that 10 was referred to later in the Supreme Court of Canada 11 was: 12 13 "'...1 will deal with the entitlement of 14 the defendants to aboriginal rights in the 15 Land Claim Area. I find that the 16 defendants have failed to prove that their 17 ancestors were an organized band level of 18 society in 1763; that, as an organized 19 society, they had exclusive occupation of 20 the Land Claim Area in 1763; or that, as an 21 organized society, they continued to 22 exclusively occupy and make aboriginal use 23 of the Land Claim Area from 1763 or the 24 time of coming of settlement to the date 25 the action was commenced.'" 26 27 And the Supreme Court said: 28 29 "It does not necessarily follow, however, 30 that we agree with all the legal findings based 31 on those facts. In particular, we find that on 32 the facts found by the trial judge the Indians 33 exercised sufficient occupation of the lands in 34 question throughout the relevant period to 35 establish an aboriginal right..." 36 37 And I -- my position is, unless it changes between 38 now and Monday when I finally get everything I'm 39 looking for, is that that doesn't mean what I 40 understand my friend Mr. Hutchins said, that 41 everything else is out. It seems to me that what that 42 does is to say you don't have to prove exclusivity. 43 You still have to prove that somebody was there in 44 some kind of organized fashion, in my respectful 45 submission, and you still have to prove that they 46 are -- they were occupying the land that they're 47 claiming. You can't just say that -- if that's out 1251 Submissions by Mr. Williams 1 the window, it seems to me that there's nothing -- 2 that they claim the entire country. And it seems to 3 me that you still have to establish that the 4 occupation -- that the occupation or the right or the 5 practice was there at the time of sovereignty or apply 6 some other tests that you may wish to apply. It does 7 not mean simply that you prove sufficient occupation 8 of the lands in question and that that's the single 9 strand test. If that's what Mr. Hutchins was saying, 10 I don't agree with it. But I may have to revisit this 11 and say that only now that -- 12 MACFARLANE, J.A.: Well, that was my shorthand note of what I 13 thought he was proposing as the test in place of 14 Baker Lake, and I may have misconceived that. 15 MR. WILLIAMS: No, we've looked at his factum, and we think that 16 probably -- that your lordship's note is correct, and 17 that being the case, then we -- he and I disagree. 18 But if there's more to add, I will later. 19 I say then that sort of uses up part of the factum 20 that appears below paragraph 20. That's what we're 21 talking about. I say clearly that the cases 22 establish, including Sparrow, but I haven't found the 23 reference yet, that exclusivity probably isn't 24 necessary, and there are a number of cases on the next 25 page that I didn't bother putting in because I didn't 26 think that the issue was going to be one that was in 27 this much contention. However, as I say, we can look 28 at them later. 29 Now, paragraph 23 is the sufficient occupation 30 reference, and the two Bear Island cases are mentioned 31 there, and they appear in the tab under 23. So I'll 32 leave that, if I may, and go on. But I say that what 33 does happen with respect to exclusivity, as I 34 indicated earlier in answer to a question by my lord 35 Justice Lambert, is that I think what it drives us to 36 is a fair and logical conclusion that exclusivity is 37 not a condition precedent or a requirement, but it's a 38 very important consideration in terms of the scope of 39 the right, the -- how the right can be exercised and 40 so on. 41 Now, I'll move over to page 14 and paragraph 27. 42 It just occurs to me -- I wasn't going to bother with 43 26, but it occurs to me in response to a question that 44 was raised about the -- what is and what isn't an 45 aboriginal practice, we say in 26 that aboriginal 46 rights include practices that are in keeping with the 47 culture and existence of the particular group. In 1252 Submissions by Mr. Williams 1 defining them, it is crucial to be sensitive to the 2 aboriginal perspective itself on the meaning of these 3 rights at stake. And I say that, you know, quite 4 frankly, if you were to ask -- ask the native people 5 whether drinking whiskey was an aboriginal practice, 6 they'd probably readily concede that it wasn't. It 7 might have been fun, but it wasn't an aboriginal 8 practice. And I think that -- that the perspective 9 has to be gleaned from a number of sources. 10 In paragraph 27, the trial judge concluded that 11 the appellants' claim of aboriginal rights must depend 12 on indefinite, long aboriginal use before the 13 assertion of sovereignty. And he says: 14 15 "What the law requires, as the time-depth 16 component of aboriginal interests, is use for 17 aboriginal purposes for a long and indefinite 18 time prior to the assertion and exercise of 19 European-type sovereignty. Thus, if it were 20 shown, for example, that the plaintiff's 21 ancestors started to use the territory for 22 aboriginal purposes shortly before European 23 contact, or had recently acquired it through 24 conquest of another aboriginal tribe or people, 25 then an aboriginal interest would probably not 26 be recognized." 27 28 WALLACE, J.A.: But in this case we're not concerned with this, 29 are we? Isn't it pretty well established that the 30 claimants were practising the aboriginal way of life 31 for some considerable time before contact? 32 MR. WILLIAMS: Well, I think it arises in the fur trading issue. 33 WALLACE, J.A.: Does it? 34 MR. WILLIAMS: And I think it arises perhaps in your 35 lordship's -- 36 WALLACE, J.A.: Oh, I see. You're saying that it depends on the 37 particular practice that we're concerned with, if 38 they've been occupying this land for -- from time 39 immemorial or close to that, but that doesn't mean to 40 say that certain practices to which they might now 41 wish to claim or identify or characterize as 42 aboriginal should indeed be characterized as 43 aboriginal. 44 MR. WILLIAMS: Yes. It's his lordship's characteristics, it's 45 the Chief Justice's characteristics that trouble me 46 when he says that, well, what if they just picked up 47 this practice of canoe making from another tribe 20 1253 Submissions by Mr. Williams 1 years before contact. 2 WALLACE, J.A.: No, but in this case are there any facts to 3 indicate that the practices they're now wishing to 4 allege are aboriginal, they have an aboriginal right 5 to did not exist for some considerable time? 6 MR. WILLIAMS: Well, the one that comes to mind is the fur 7 trading. They would say that they're entitled to 8 trade in furs, and his lordship says no, that fur 9 trading was something that was picked up later. 10 That's my understanding. 11 WALLACE, J.A.: I see. I was under the impression that this 12 claim for title and ownership of land included the 13 right to use it as in any manner they saw fit to do. 14 MR. WILLIAMS: That may be the position of the appellants. That 15 is not the position of the respondents. 16 WALLACE, J.A.: Well, no, but I'm talking about the appellants' 17 position. I see. And you're breaking that down. 18 MR. WILLIAMS: Yes. 19 WALLACE, J.A.: You say that may apply insofar as the land is 20 concerned, but this particular practice of fur trading 21 arose -- 22 MR. WILLIAMS: Yes, I was trying to develop a test that would -- 23 HUTCHEON, J.A.: It's the trial judge that used "to cut down the 24 land." 25 MR. WILLIAMS: Yes. I'm trying to develop a test that, in my 26 respectful submission, is a more workable and 27 appropriate one than the learned trial judge did and 28 one that, however, takes care of some of his concerns 29 coming out of Baker Lake. You see, Baker Lake said 30 sovereignty, date of sovereignty. Well, let's just 31 take the drinking of whiskey. That makes whiskey 32 drinking an aboriginal practice, if you want to be 33 technical about it, because if that's all you have to 34 prove, is date of sovereignty and that's what they did 35 just before, it's an aboriginal practice. And his 36 lordship, the Chief Justice, expressed some real 37 concern about that, and I agree with him. I think 38 that that's a bit silly, to talk about something that 39 we know is a totally European injection into the 40 culture. 41 WALLACE, J.A.: Yes. 42 MR. WILLIAMS: But, but the solution that he chose was to say 43 so, therefore, you have to establish that it had a 44 long, long time, and I'm suggesting that, with the 45 greatest of deference, that test is a very, very 46 difficult one for anyone to meet, and perhaps a better 47 test is the test that we're suggesting, which is 1254 Submissions by Mr. Williams 1 that -- another test is to go back to contact and say 2 whatever was there at contact and still there at 3 sovereignty is an aboriginal practice or is something 4 that can be protected, but if they picked it up 5 between contact and sovereignty, can't do it. That 6 gets into a lot of problems, as I see, as well. So I 7 felt -- so we said -- 8 TAGGART, J.A.: Well, that's a pretty short space of time in 9 this case. The first contact seems to have been 10 around, perhaps the earliest, 1810, if I'm not 11 mistaken, 1810 to 1815. 12 MR. WILLIAMS: Yeah, in the case of the Gitksan of British 13 Columbia. 14 TAGGART, J.A.: Perhaps some casual observance of Mackenzie 15 making his way to the coast in the late 1870s, but - 16 MR. WILLIAMS: In the late 1780s. 17 TAGGART, J.A.: Sorry, 1790s. 18 MR. WILLIAMS: 1790s. 19 TAGGART, J.A.: Yes. But that doesn't do you much good in this 20 case. 21 MR. WILLIAMS: No. And it's, I suppose, part of — if we are to 22 be looking at general tests that can be used 23 throughout and then be of assistance in the parties to 24 apply to their particular facts, I say in this 25 situation that to suggest, as this test does, that if 26 it had been recently acquired, precontact even, it's 27 still not an aboriginal practice. What he says in the 28 second one at page 388: 29 30 "What the law protects is not bare presence or 31 all activities, but rather aboriginal practices 32 carried on within an aboriginal society in a 33 specific territory for an indefinite or long, 34 long time." 35 36 I challenge that. The third one seems more 37 reasonable. But, on the other hand, as I say going 38 over the page, the suggestion that we make and what 39 the province offers as a reasonable test is that they 40 were -- this is really our test. I suppose it comes 41 from Baker Lake originally. We say that there was an 42 organized society. They occupied and they used a 43 specific tract of land over which they assert their 44 claim. 45 HUTCHEON, J.A.: Sorry, what paragraph are you on? 46 MR. WILLIAMS: Sorry. This is a note I made to myself. I'm not 47 reading from the factum. I'm saying that the test -- 1255 Submissions by Mr. Williams 1 my factum does make the point that, in 28, in adding 2 the further requirement to the Baker Lake test, that 3 is the long, long time, the trial judge transformed a 4 fact that existed in Baker Lake litigation, because in 5 Baker Lake way up north, I suppose, there was really 6 no difference between contact or the suggestion is 7 there was no difference between contact and 8 sovereignty and it just was so far north that it all 9 happened very close to the same time, namely, that the 10 Inuit people had occupied the lands in that case for a 11 long, long time, into a legal requirement without 12 offering, in the province's respectful submission, a 13 proper legal foundation for the addition. So what 14 we're saying is that the better approach, with 15 respect, is to say that once you establish that you 16 had a society that was at least somewhat organized and 17 once you can demonstrate that they occupied or used a 18 specific tract of land over which you're levelling a 19 claim, which you're advancing a claim, and that it was 20 an integral part of their distinctive culture, then it 21 seems to me that that's a better test, and whether it 22 was occupied or used and whether such use or occupancy 23 was an integral part of the distinctive -- the 24 distinct society has got to be one of those things 25 that's done on a case by case basis. See, that's the 26 position of the province on that. 27 TAGGART, J.A.: We have a problem in this case because the trial 28 judge did not accept the testimony of some of the 29 expert witnesses who gave evidence as to the origin of 30 the ancestors of the present day occupants of the 31 territory, but that aside, it does seem to me one 32 could begin an assessment of the problem of occupancy 33 by accepting that the ancestors of the present 34 occupants had been in the territory one way and 35 another for a very long time, I think 3,000 years or 36 2,500 years was tooted about, but if you go tiptoeing 37 through the various witnesses who were accepted and 38 rejected by the Chief Justice, I think out of it all 39 one could conclude that the ancestors of the present 40 occupants had been there for say 2,500 years. 41 MR. WILLIAMS: Yes, and he does agree with that, the Chief 42 Justice does. 43 TAGGART, J.A.: I think that's the bottom line on that aspect of 44 it. Then if you proceed from that point to what they 45 did there, it would seem to me axiomatic at any rate 46 that the ancestors of the occupants found there at the 47 date of sovereignty or the date of contact -- the two 1256 Submissions by Mr. Williams 1 are so close together that there's not much to 2 distinguish between them -- that what those occupants 3 were doing at that time to sustain themselves was very 4 likely being done throughout the previous hundreds of 5 years of history. If it was only to what they could 6 grow for themselves and catch for themselves from the 7 streams and produce for themselves from hunting 8 expeditions of mountain goats and bears and so on, if 9 that's what the occupants at the time of contact were 10 able to do for themselves, it was highly unlikely that 11 their ancestors could do more than that, and indeed 12 probably with more rudimentary means they had to do 13 with less than that. Nevertheless, that was the only 14 access to sustenance that they had, and that's what 15 they used. So you have a long-time occupation by the 16 ancestors of these occupants of the territory using 17 the land if not in entirely similar ways, at least in 18 somewhat similar ways in a much more rudimentary 19 sense. Now, if you can get that far, have you not 20 shown an occupancy sufficient to show that there is an 21 aboriginal right? 22 MR. WILLIAMS: Yes, I think that does, but I think you may be 23 able to show less than that and still get there. What 24 I'm -- what I'm really quarrelling with is this 25 suggestion, my lord. I am saying that to suggest: 26 27 "Thus, if it were shown, for example, that the 28 plaintiff's ancestors started to use the 29 territory for aboriginal purposes shortly 30 before European contact..." 31 32 Now, I don't know what shortly before means, but it 33 might mean a year or it might mean 50 years, but if 34 they did that, then the trial judge says: 35 36 "...or had recently acquired it through conquest 37 of another aboriginal tribe," 38 39 then he says the aboriginal interest would probably 40 not be recognized. And I suppose what I'm saying is 41 that I consider, with the greatest of respect to the 42 trial judge, that that may be an unworkable test and 43 that -- and that it may be better to say that at the 44 date of sovereignty, in this case, or if you want the 45 date of contact, as you say, they're close together, 46 but to stay with the Baker Lake line of cases and so 47 on, that at the date of sovereignty, if that was an 1257 Submissions by Mr. Williams 1 integral part of their culture, whenever they picked 2 it up or wherever they got it, as opposed to something 3 that they got from us, if that was an integral part of 4 their culture, then it's an aboriginal practice 5 irrespective of whether it started 10, 15, or 20 years 6 before contact or 3,500 years before. That's what I 7 was trying to say. 8 WALLACE, J.A.: So I'm clear, are you saying that trapping was 9 an integral part of the culture of the natives prior 10 to contact? 11 MR. WILLIAMS: Yes. And his lordship — 12 WALLACE, J.A.: Then secondly -- just hear me out first and tell 13 me where I'm going wrong here. Assume they never 14 trapped in a large portion of the land to which they 15 now claim ownership, aboriginal title, but they did 16 after trapping became a commercially viable enterprise 17 after the European contact. Are you saying because in 18 this land to which they had never put that particular 19 aboriginal practice into -- implemented it, because it 20 was a practice which was an integral part of their 21 culture, it now establishes an aboriginal right to 22 ownership of the area to which they did not frequent 23 before? 24 MR. WILLIAMS: No, I don't say that. 25 WALLACE, J.A.: I see. I was starting to wonder where this is 26 all going. 27 MR. WILLIAMS: Well, if there's a brand-new area but there's no 28 evidence that it was ever used for anything at all 29 until contact and they started trapping in the area 30 between contact and sovereignty for the purposes of 31 commercial trapping, I would say that's not included, 32 but as I understand the evidence -- 33 WALLACE, J.A.: Why not? 34 MR. WILLIAMS: Why would it not be? 35 WALLACE, J.A.: Yes. 36 MR. WILLIAMS: Because I'm saying that I think a line has to be 37 drawn somewhere, and I think the line can be drawn as 38 Madam Justice Wilson draws it, if it's done for a 39 commercial purpose. Leaving that aside, if I can go 40 back to the earlier part of your question, if it can 41 be demonstrated that they were trapping generally, 42 just like they were hunting generally, throughout the 43 area of the claim once a year, twice a year, they went 44 through river valleys and they trapped, and they 45 hunted, and they fished, and they picked berries, if 46 that's what they did, and if, as we know the evidence 47 is, they did trading precontact with other groups, the 1258 Submissions by Mr. Williams 1 Mackenzie grease trail and all the other trails 2 through there, that they traded for oolichan grease, 3 it seems to me that it's an aboriginal practice to fur 4 trade in that sense. They traded furs for fish. It 5 seems to me that they have established -- I'm talking 6 hypothetically now, my lord. It seems to me they 7 would have established a right to trade in furs for 8 the purposes that they did, sustenance and so on, at 9 that time. Now, if when the Hudson Bay Company came 10 in they simply traded to the Hudson Bay Company for 11 blankets as opposed to fish, I can't say that that's 12 not part of the aboriginal right either. 13 WALLACE, J.A.: And if they traded for dollars? 14 MR. WILLIAMS: If they traded for dollars, it would be the same 15 thing if the purpose is the sustenance. But it's like 16 the casino example. 17 WALLACE, J.A.: What's sustenance? 18 MR. WILLIAMS: Well — 19 WALLACE, J.A.: I mean, when does that stop? 20 MR. WILLIAMS: There's three possibilities here, it seems to me, 21 and I thought about them all, and I'm concerned about 22 each. As I said, drawing a line is -- drawing a line 23 is a very difficult thing. Either you say I don't 24 care if they did trap beaver and trade the beaver in 25 the early days, we're going to say fur trading is not 26 an aboriginal practice because it leads to a 27 tremendous commercial problem, or you can say because 28 they used to trap furs and because they used to trade 29 them for fish, they could trade them for anything and 30 for any purpose, and they can set up a fur trade 31 business or they can get 4 or 5,000 pounds of fish and 32 fish at special times when no one else can fish, and 33 they can sell those fish. And I suppose all I can say 34 is that, again, we're not dealing with your every day 35 kind of case. We're dealing with a case that needs 36 special treatment, and it needs to have special lines 37 drawn, as the chief's -- as they have done in Sparrow. 38 And I say that maybe the place to draw the line, and I 39 only make this suggestion, is to say that they are 40 permitted to continue with the practices they had 41 before in the areas they used before for the purposes 42 that they had before, albeit with modern techniques. 43 They cannot commence a brand-new practice, which I say 44 is commercial fur trading to set up a profitable 45 industry. Now, I'm just suggesting that a line can be 46 drawn there. I'm not saying that -- I can't think of 47 anywhere else to draw it, and neither could Madam 1259 Submissions by Mr. Williams 1 Justice Wilson. 2 WALLACE, J.A.: Okay. 3 LAMBERT, J.A.: Before we leave this question, the test you 4 propound is as an integral part of their distinctive 5 culture, and you're going to come back to Mr. Justice 6 Wallace's example about the gambling and its modern 7 form in casinos, and you've given the example about 8 drinking whiskey. It seems to me that there may be a 9 useful addition to your test in relation to the 10 distinction between rights and freedoms. Mr. Hutchins 11 raised this yesterday. It seems to me that you can 12 say that things like drinking whiskey or eating 13 chocolate cake or gambling are not rights. You're 14 free to do them, but they're not protected with the 15 status of rights. There is an analysis over several 16 pages by Chief Justice Bayda in the Retail Clerks 17 case, which is a 1985 5 Western Weekly Reports, I 18 believe, discussing the difference between rights and 19 freedoms, and it may be that that difference goes to 20 what is integral in the integral part of their 21 distinctive culture, but it may be easier to express 22 the total test as being not just an integral part of 23 their distinctive culture, but that those aspects that 24 are integral parts of their distinctive culture that 25 should be elevated or were elevated by them to the 26 status that we would regard it as rights rather than 27 freedoms. 28 MR. WILLIAMS: I'm not sure I follow the last part. 2 9 my lord. 30 LAMBERT, J.A.: Yes. That's all right. There is a 31 to be made between rights and freedoms. 32 MR. WILLIAMS: Yes. 33 LAMBERT, J.A.: All right. Even if you could say that gambling 34 was an integral part of their distinctive culture, 35 perhaps you should also say that though it was 36 integral -- 37 MR. WILLIAMS: I see. 38 LAMBERT, J.A.: — it wasn't treated by them — 39 MR. WILLIAMS: As a right. 40 LAMBERT, J.A.: — as a right. It was treated by them as what 41 we regard as a freedom. 42 MR. WILLIAMS: I understand. 43 LAMBERT, J.A.: So that takes you down to those things that are 44 not just integral, but maybe it's because there are 45 correlative duties recognized by other people, but for 46 some reason they're more than just a practice, they're 47 integral, and they're protected by that. I'm only I'm sorry, distinction 1260 Submissions by Mr. Williams 1 indicating this not because I've reached any -- 2 MR. WILLIAMS: No. 3 LAMBERT, J.A.: -- firm views, but because I will welcome any 4 help I can get from counsel along those lines. 5 MR. WILLIAMS: Well, that's a very interesting point which we'll 6 take up on the weekend. Can I just say this about it. 7 I started out by looking at the rights and freedoms 8 aspects in reference to the self-government issue, and 9 I said to myself, all right, somewhere along the line 10 there's a right to something, and there are some 11 things that maybe aren't rights, and what are they, 12 and I started out by saying, well, the so-called right 13 to self-government, which most people seem to think 14 was not included in 35, maybe it's not a right. Maybe 15 the self-government is a freedom. And I refer in my 16 factum to that, or my speaking notes. I call it a 17 right or freedom because I'm just not sure. Certainly 18 the appellants say they had a right to self- 19 government, and the interveners mostly say there was a 20 right to self-government, and maybe there is. And if 21 it's not entrenched, maybe it will be entrenched 22 before this case is over. But at the moment what is 23 it? And I don't know. It's either a right or a 24 freedom. Then I started looking at the other rights, 25 and I said, well, what about the right -- what about 26 their right to aboriginal title. Well, that's 27 certainly been -- no one has ever suggested that's -- 28 they say it's a legally enforceable right. The courts 29 have said it's a legally enforceable right. So if 30 it's a legally enforceable right, I have to accept 31 that. And then I say, well, what does that include? 32 What is aboriginal title anyway? Well, I think it's 33 the right to occupy and use land. So if there's a 34 right to occupy and use land, sui generis interest in 35 land, interest in respect of land, if there's a right 36 to do that, what does that mean in terms of some of 37 the source practices? Is there a right to hunt, or is 38 that a freedom that hasn't yet made it into a right 39 because it's just something you do on the land? And I 40 met myself coming around the circle on this whole 41 business and felt that except for the right to -- 42 except for the issue with respect to self-government, 43 which hasn't, I think, been entrenched, we can call it 44 a freedom or a right, the other ones -- we know that 45 fishing is a right. It's been dealt with in Sparrow. 46 So I come back to -- come back to where we were with 47 respect to how you can determine it, and I think 1261 Submissions by Mr. Williams 1 that's a valid contribution, my lord, Justice Lambert, 2 to point out, that such things as gambling, which 3 nobody really thought of as a right, an aboriginal 4 right -- it isn't even an unaboriginal right, I don't 5 think. 6 WALLACE, J.A.: How do you know no one ever thought of it as an 7 aboriginal right? 8 MR. WILLIAMS: I don't know that. 9 WALLACE, J.A.: Well — 10 MR. WILLIAMS: No, it hasn't been talked about. 11 WALLCE, J.A.: You're giving a subjective viewpoint. It might 12 have been a very desirable way of relaxing, much like 13 going on a hunting trip or anything else, fishing. 14 MR. WILLIAMS: I don't recollect any evidence of anybody trying 15 to suggest that gambling or drinking or -- 16 WALLACE, J.A.: Well, no, drinking is another matter. I 17 don't -- there is a lot of -- 18 MR. WILLIAMS: They're both bad though, my lord. 19 WALLACE, J.A.: No, but there is a lot of historical material 20 stating how the natives participated at great length 21 in gambling, gambled all day and all night and that 22 type of thing because they took a very keen interest 23 in it. 24 MR. WILLIAMS: Well, I think if it was a pleasurable activity 25 along with a lot of other things that they did, it may 26 be a freedom. 27 WALLACE, J.A.: What I'm getting at really is your definition of 28 a right. It seems to me a right is something that the 29 social laws of the particular culture will enforce and 30 protect, and there is a correlative duty on others to 31 associate with that right. That's why I have 32 difficulty seeing how the aboriginal right that's 33 recognized by European -- after contact by the 34 Europeans could exist precontact. It seems to me it's 35 an aboriginal right because the Europeans by reason of 36 the conduct of -- which arose at the time of 37 discovery, et cetera, was recognized, either by 38 European law or by international law or whatever, as 39 something that these -- the aboriginal people were 40 entitled to have observed and protected by the 41 Europeans, and I have difficulty in that right 42 existing before. I could see the practice existing 43 before contact, but I would have thought the right and 44 hence the correlative duty arose after contact. 45 Now — 46 MR. WILLIAMS: I think that you have hit the nail on the head, 47 my lord. The difficulty I'm having with this whole 1262 Submissions by Mr. Williams 1 thing, and I'm sure we all are, is that we know that 2 somewhere in there there's a right. It's been 3 recognized, and there's a corresponding duty. That's 4 not a bad start for a definition of a right, it seems 5 to me. It's recognized by everyone, including the 6 European settlers and so on, that there's such a thing 7 as aboriginal title, Indian title, aboriginal rights 8 with respect to land, whatever you want to call it. 9 There is a recognition of the right, and there's an 10 obligation to do something about it until it's 11 extinguished. You can extinguish it, but if you don't 12 extinguish it, you have to recognize it, and certain 13 things have to be done. So there is a corresponding 14 duty. It's a low-level right until it hits the 15 Constitution and gets elevated, but it's there. 16 Now, my next question is, well, what does that 17 include? What does it mean if you tell me I've got an 18 aboriginal right or aboriginal title? What have I 19 got? Well, you've got a right to live somewhere on 20 some land and to cultivate a field and to go hunting 21 and fishing. So I've sort of brought them all in as 22 part of the right in that way, but you could break 23 them down, and perhaps they should be broken down. 24 The problem with breaking them down is once you get 25 below the ones we all know about or hear about, like 26 hunting and fishing and berry picking and so on, and 27 you start thinking about gambling, then you say to 28 yourself, well, I hadn't thought about that one. 29 That's never been suggested as a right, so maybe it is 30 a freedom not yet a right. But I tried to avoid the 31 confusion by saying there's an aboriginal right to use 32 and occupy certain lands that can be proven to have 33 been occupied by ancestors and to do those things, to 34 do those things on that land which it can be proven 35 were an integral part of their culture. And that's 36 the best that I've been able to do to try to avoid the 37 thorns that you find in any other way you look at it, 38 but perhaps that's not correct. 39 Now, I agree that it's pretty hard to say that 40 there's a right to gamble, even if it was a practice, 41 because where's the obligation and where's the 42 recognition. I know of no recognition of that 43 sub-right. The right to cut trees to make canoes and 44 totem poles is perhaps another one. I know of no 45 actual recorded right to cut trees, but certainly part 46 of using and occupying the land that's what they did, 47 just in the same way that they fished and hunted. 1263 Submissions by Mr. Williams 1 So I'm sorry that it tends to go around in a 2 circle, but I believe that if we can look at it that 3 way and avoid the long-term test and in dealing 4 with -- if I can now come to the frozen rights, which 5 we're part way through anyway, and I'm on page -- I 6 was on page 15, and I say the sui generis nature of 7 the aboriginal right. The aboriginal rights in 8 respect of land protected by 35(1) are sui generis in 9 the sense that they are unique and they're difficult, 10 if not impossible, to square with traditional property 11 and trust law. Just -- I suppose apropos what we were 12 just saying and what -- in terms of the scope of these 13 rights and so on, I recall that Pierre Trudeau, our 14 previous prime minister, once made the statement that 15 the democracies are ungovernable, have become 16 ungovernable, and by analogy it seems to me that the 17 scope and content of sui generis rights is undecidable 18 in its general form. I think it's undecidable. I 19 don't think you can say that a sui generis right in 20 respect of land is as follows and then just define it. 21 I don't think it's possible. I think what we have to 22 do is that we have to try to describe the nature of 23 the right, and we probably have to turn our minds away 24 from the British-Canadian property channel, the land 25 law channel, in order to deal with that. 26 And I say that, carrying on in paragraph 29, the 27 statements that have been made by the courts: 28 29 "The inescapable conclusion from the court's 30 analysis of Indian title up to this point is 31 that the Indian interest in land is truly sui 32 generis." 33 34 Then he goes on to say: 35 36 "It is more than the right to enjoyment and 37 occupancy although, as the Chief Justice 38 pointed out in Guerin, it is difficult to 39 describe what more in traditional property 40 terminology." 41 42 And in the Sparrow case: 43 44 "Courts must be careful...to avoid the 45 application of traditional common law concepts 46 of property as they develop their understanding 47 of...the sui generis nature of aboriginal 1264 Submissions by Mr. Williams 1 rights." 2 3 And in Amodu Tijani: 4 5 "There is a tendency, operating at times 6 unconsciously, to render that title 7 conceptually in terms which are appropriate 8 only to systems which have grown up under 9 English law. But this tendency has to be held 10 in check closely." 11 12 The sui generis nature of aboriginal rights is 13 also reflected in the fact that aboriginal rights are 14 communal. So we have to look at the characteristics 15 of the right to see what it is, and we have to turn 16 ourselves, as I say, we have to switch the channel 17 from our thinking about our British traditional land 18 law concepts to something we haven't yet discovered. 19 And I say that here are the characteristics. The sui 20 generis nature of the aboriginal title is that it's 21 communal, and it's advanced as a communal right and 22 not as an individual right. 23 The sui generis nature, paragraph 31, of 24 aboriginal rights is also reflected in the fact that 25 they can't be alienated, other than by surrender to 26 the Crown. That's something very different. It 27 doesn't necessarily mean that it's personal or that 28 it's proprietary or neither, but it means that it's 29 different. It can't be alienated. That doesn't sound 30 like a property right at all. And we say, of course, 31 these are non-proprietary rights, but it doesn't 32 necessarily mean that it's limited to being what has 33 been described as a personal right. 34 HUTCHEON, J.A.: I'm sorry, I hadn't heard that before. 35 MR. WILLIAMS: I'm on page 16, paragraph 31. 36 HUTCHEON, J.A.: Yes, I appreciate that. You agree with the 37 trial judge it's non-proprietary? 38 MR. WILLIAMS: I do. 39 HUTCHEON, J.A.: Well, I hadn't heard that before. 40 MR. WILLIAMS: I also agree that on this new channel, if I can 41 put it that way, with the remarks of the Supreme Court 42 of Canada when they say, in effect, it may have some 43 aspects of proprietary, but we say -- 44 HUTCHEON, J.A.: Oh, yes, you said in respect of land, didn't 45 you? 46 MR. WILLIAMS: Yes. 47 HUTCHEON, J.A.: Yes. 1265 Submissions by Mr. Williams 1 MR. WILLIAMS: It may have some aspects of a proprietary right 2 and aspects of a personal right, but it is not limited 3 to either. And it is not a proprietary right in the 4 sense that it could be ownership. That's my position. 5 HUTCHEON, J.A.: Yes. 6 LAMBERT, J.A.: But you can own it? 7 MR. WILLIAMS: It's got something to do with the land. 8 LAMBERT, J.A.: Yes. But a right of occupancy would be 9 regarded, in our terminology, as a proprietary 10 interest in the land, if you own the right to occupy 11 land. 12 MR. WILLIAMS: Well, if you owned the exclusive right to occupy 13 black acre, I would have to say that's either awfully 14 close to or is a proprietary right. 15 LAMBERT, J.A.: Yes. 16 MR. WILLIAMS: But if you simply in a communal way lived in an 17 area which certain parts were allocated to certain 18 people, unless there was evidence of exclusivity, 19 evidence -- acceptable evidence that you had an 20 exclusive right, and unless it was in some way 21 alienable, then I would say that it's not one of those 22 things that we would call a proprietary right, and so 23 I'm basing my non-proprietary argument -- 24 HUTCHEON, J.A.: It may make no difference, I suppose, if -- 25 it's not -- describing it as non-proprietary, as I 26 understand the discussion, leads to an easier removal 27 than proprietary. Isn't that the only difference we 28 have? 29 MR. WILLIAMS: Well, it's true that it leads to an easier 30 removal because -- 31 HUTCHEON, J.A.: By extinguishment. 32 MR. WILLIAMS: -- one could say if there's a proprietary 33 interest they could go in and get, I suppose, a caveat 34 or a lis pendens or they could have -- 35 HUTCHEON, J.A.: No, I was thinking of the extinguishment 36 argument. I think the argument runs if it's 37 non-proprietary, it's much more easily extinguished 38 than if it's proprietary. 39 MR. WILLIAMS: Yes, I think that's true. 40 HUTCHEON, J.A.: But when you talk about not alienable and that, 41 the rights of way over the common in England are not 42 alienable. 43 MR. WILLIAMS: The rights? 44 HUTCHEON, J.A.: The rights of way over the common in England, 45 shared by the whole village, they can't be alienated, 46 but they're certainly a proprietary right, it seems to 47 me. But it may -- the use of the terminology may not 1266 Submissions by Mr. Williams 1 help us very much. 2 MR. WILLIAMS: It doesn't. I think that we have to steer away 3 from -- well, first of all, I submit there's no case 4 for ownership at all, but I say also that if you steer 5 away from the use of the word proprietary and treat 6 this as the -- and try to develop whatever a sui 7 generis interest in respect of land is, it may be more 8 fruitful in the end, I agree. 9 Now, there's an interesting analysis by Mr. 10 Justice Estey in the Smith v. The Queen case. I don't 11 know that I need to take you through it, but what he 12 says really is that if the Crown takes back an Indian 13 title, an aboriginal title, and I would certainly urge 14 your lordships to read Smith v. The Queen, it's a very 15 tightly reasoned decision of Mr. Justice Estey, and he 16 says that if you were to take what is called 17 aboriginal title, whatever that may mean, and you were 18 to surrender it, it doesn't get transferred to the 19 federal government. It disappears. It no longer 20 exists. It's gone. It's just evaporated, because 21 once they surrender their interest to the federal 22 Crown, it's all over. There is nothing left to deal 23 with. And his analysis, as I say, is worth reading, 24 but I don't think that I should bore you with reading 25 through it. There is one passage maybe I'll bore you 26 with, if I can find it. Here it is. It's in tab 31 27 and -- tab 31, and it's the second -- first green 28 sheet in, Smith v. The Queen. 29 TAGGART, J.A.: What was the page number? 30 MR. WILLIAMS: Page 568. 31 TAGGART, J.A.: 568? 32 MR. WILLIAMS: Yes. It should be right after the beginning of 33 tab 31. 34 TAGGART, J.A.: Okay. 35 MR. WILLIAMS: Sorry. At the bottom he says: 36 37 "The right of the Indians to the lands in 38 question was described by Lord Watson in St. 39 Catherine's at p. 54 as 'a personal and 40 usufructuary right'. The latter term is 41 defined as follows." 42 43 Then he says this: 44 45 "The release, therefore, is of a personal 46 right which by law must disappear upon 47 surrender by the person holding it; such an 1267 Submissions by Mr. Williams 1 ephemeral right cannot be transferred to a 2 grantee, be it the Crown or an individual. The 3 right disappears in the process of the release, 4 and a release couched in terms inferring a 5 transfer cannot operate effectively in law on 6 the personal right any more than an express 7 transfer could." 8 9 So I think what he's saying is that this odd, unique 10 sui generis interest in respect of land isn't a 11 proprietary thing. It disappears. 12 Now, I have to then bring you back in the Paul 13 case to that quote, which is that -- this is at the 14 bottom of page 16 -- "as a 'personal and usufructuary 15 right,'" it was described in St. Catherine's Milling. 16 17 "This has at times been interpreted as meaning 18 that Indian title is merely a personal right 19 which cannot be elevated to the status of a 20 proprietary interest so as to compete on an 21 equal footing with other proprietary interests. 22 However, we are of the opinion that the right 23 was characterized as purely personal for the 24 sole purpose of emphasizing its generally 25 inalienable nature; it could not be 26 transferred, sold or surrendered to anyone 27 other than the Crown." 28 29 Now, that leads us I'm not sure where, but it 30 leads us back where I started on this page, that it's 31 got to be something different. Then at the bottom 32 after that it says: 33 34 "It appears to me that there is no real conflict 35 between the cases which characterize Indian 36 title as a beneficial interest of some sort, 37 and those which characterize it as a personal, 38 usufructuary right." 39 40 This is from Guerin. 41 42 "Any apparent inconsistency derives from the 43 fact that in describing what constitutes a 44 unique interest in land the courts have almost 45 inevitably found themselves applying a somewhat 46 inappropriate terminology drawn from property 47 law. There is a core of truth in the way that 1268 Submissions by Mr. Williams 1 each of the two lines of authority has 2 described native title, but an appearance of 3 conflict has none the less arisen because in 4 neither case is the categorization quite 5 accurate." 6 7 And that's sort of like leaving us in the middle 8 of a movie and saying tune in next Tuesday. I don't 9 know -- we have to go on from there, and I only say 10 that it may be painful for us to lift the anchor that 11 we're so used to in our thinking, but if you take the 12 guidance from the Guerin and the Paul case, painful 13 though it may be, these concepts have got to be put 14 aside, our thinking has to be changed, and the sui 15 generis nature demands a new approach. It's probably 16 more than personal or usufructuary in the meaning that 17 we've given to those words, and it may have some 18 aspects of a proprietary title, but what it is not, in 19 my respectful submission, is ownership, at least by 20 the meaning that we attribute to the word ownership, 21 and I'll come back to that a little later. 22 And then I move on, my lords, to D, the 23 relationship between aboriginal rights and Crown 24 title, and I say that the province agrees with the 25 learned trial judge's conclusions that it's 26 unnecessary to pin down an exact date and that we all, 27 I think, are prepared to accept 1846 as sovereignty. 28 Other dates could be argued, but it seems to make 29 sense. And I needn't refer to any of those cases. 30 I say that British sovereignty over lands now 31 included within the province is not contested by the 32 appellants, and that we know they agree to the Crown 33 sovereignty over the land, and that the Crown in right 34 of British Columbia owns the allodial title to the 35 land by virtue of the assertion of Crown sovereignty. 36 It's my respectful submission firstly, and this is 37 also in agreement with the trial judge on both counts, 38 that sovereignty, the assertion of sovereignty and 39 the, therefore, gaining of the allodial title, and 40 I'll be back to that in a moment, was sufficient to 41 terminate any concept of ownership of land by the 42 appellants. And the -- but I say if that were wrong, 43 and the learned trial judge says it's right, we agree 44 that it's right, but if that were wrong, then Calder 45 II would have -- which took from the allodial title 46 and simply identified that the fee belonged to the 47 Crown for the purposes of setting up a conveyancing 1269 Submissions by Mr. Williams 1 system, it was not itself a conveyance, that Calder II 2 by creating that would have done it in any event. I'm 3 talking ownership, not aboriginal rights. I'm saying 4 that the ownership of the land, which is a totally 5 separate concept from aboriginal rights -- aboriginal 6 rights, in our position, not only survived 7 sovereignty, as everyone else said it did everywhere 8 else, it survived the Calder documents because those 9 documents did not, and I'll be coming to this on 10 Monday, because those documents taken together did not 11 extinguish, and there must be a clear and plain 12 intention, which there wasn't there, in our 13 submission. So aboriginal rights continued to ride 14 through the sovereignty and Calder documents, but 15 ownership ended with sovereignty, and if it didn't, it 16 ended with Calder. 17 The Supreme Court of Canada -- I don't think I 18 need to take you through this very much. You've heard 19 it before. The Supreme Court of Canada acknowledged 20 the underlying Crown title in Sparrow where Chief 21 Justice Dickson and Justice La Forest said: 22 23 "It is worth recalling that while British policy 24 towards the native population was based on 25 respect for their right to occupy their 26 traditional lands, a proposition to which the 27 Royal Proclamation of 1763 bears witness, there 28 was from the outset never any doubt that 29 sovereignty and legislative power, and indeed 30 the underlying title, to such lands vested in 31 the Crown." 32 33 Because they pre-date Crown sovereignty and are in 34 no way related to the existence of Crown title, 35 aboriginal rights do not fit within the common law of 36 estates, where private legal interests in land are, 37 factually or fictionally, granted from the Crown. 38 It's unhelpful to even attempt to analyse the 39 aboriginal rights using concepts of traditional land 40 law. We've been through that. 41 And paragraph 38 is a paragraph I'd like to take 42 up and put to your lordships as a way to look at this 43 because I think it's very helpful, at least it's been 44 very helpful to me, and that is that it comes down to 45 this, that the minute that sovereignty is asserted in 46 British Columbia, the allodial title, and I should 47 have the definition handy, but I have it here 1270 Submissions by Mr. Williams 1 somewhere, the allodial title is everything. There is 2 just nothing left. It's the title. It's the whole 3 thing. So you don't have to talk about estates of 4 land or interests in land or anything else. That is 5 the underlying title. And all estates and interests 6 stem from that. Everything that we can think about in 7 our land law comes from the allodial title, which I 8 finally learned to pronounce. I was calling it the 9 alluvial title, but that's not the right 10 pronunciation. It all comes from that title, and it 11 comes down in the form of estates in fee simple, life 12 estates, other kinds of Crown grants, leases, and any 13 number of interests or estates in land. And the 14 difference between -- and so you can look at it 15 vertically, and you can say it all starts at the top 16 with Her Majesty the Queen, and it works its way down 17 to perhaps the lowest form of an interest in land. 18 You know, it may be a one-day lease or something, but 19 it starts with a fee simple, which is the highest 20 estate in land. But the Indian title, the aboriginal 21 title has nothing to do with that movie, and it isn't 22 part of that vertical graph. It's horizontal. It's 23 over here. And I say that the -- that the -- 24 WALLACE, J.A.: Where is here? I'm sorry, your sketch has sort 25 of got me lost. 26 MR. WILLIAMS: I'm suggesting — 27 WALLACE, J.A.: You're saying a fee simple and allodial title 28 are the same, or are you? 29 MR. WILLIAMS: No, no. I'm saying that the allodial title is 30 everything. It's the highest possible -- it's the 31 highest possible -- 32 WALLACE, J.A.: It's not the origin, it includes everything? 33 MR. WILLIAMS: It includes everything. 34 WALLACE, J.A.: Every title that — 35 MR. WILLIAMS: Everything that could be is included in the 36 original title, which is the allodial title. A 37 radical title it's sometimes called. 38 MR. WILLIAMS: A radical is the same, a radical is the same as 39 allodial? 40 MR. WILLIAMS: Yes. Our respective homes that people own are 41 not in theory, they may be in fiction, but are not in 42 theory owned by us really. They are owned by Her 43 Majesty the Queen, and what we have is the highest 44 estate, which is a fee simple grant. 45 WALLACE, J.A.: What has she got? 46 MR. WILLIAMS: She's got the allodial title. 47 WALLACE, J.A.: Well, that's what I was saying. A moment ago 1271 Submissions by Mr. Williams 1 you said she had the fee simple. That's why I -- 2 MR. WILLIAMS: I'm sorry if I did say that. 3 WALLACE, J.A.: Well, it may be I misinterpreted what you were 4 saying. 5 MR. WILLIAMS: I didn't mean that, and I apologize if I did. I 6 meant to say -- 7 WALLACE, J.A.: So the fee simple is the first down-grading, if 8 you wish, from the allodial title? 9 MR. WILLIAMS: Yes. And indeed what happened in the Calder 10 documents was that she who owned all and didn't have 11 to worry about any estates granted herself a lesser 12 estate, and the reason she did that was, the reason 13 she created the fee simple was that so she could get 14 on with granting something to the settlers, and we'll 15 explain that, if I may, later. For the moment what 16 I'm talking about is that the allodial title is the 17 origin, it's at the top, it includes everything, and 18 there's nothing else that anyone can own, nothing. 19 What comes out of that is a grant down to the fee 20 simple and the other estates in land and the other 21 interests in land. Now, what I'm saying is that 22 aboriginal title is not part of that tree. It's a 23 horizontal concept. It's over here. And it's a 24 burden upon the Crown or a burden upon the Crown's 25 title. It isn't something you can go to a land 26 registry office and deal with. It isn't something 27 that was granted by the Queen. It didn't come because 28 of sovereignty. It was here before she got here. It 29 was here before sovereignty was asserted. And 30 whatever this -- whatever this concept is, aboriginal 31 title, it is a burden upon the Crown title. It can be 32 looked at horizontally as opposed to equivalent to a 33 lease or equivalent to a fee. Because it's there when 34 the Crown -- my lord, because it's there when the 35 Crown asserts sovereignty in British Columbia, it has 36 to be dealt with, it has to be considered as 37 something, and what the courts have treated it as is a 38 burden upon the Crown or a burden upon the Crown's 39 title, and that's the manner in which I understand 40 that it is described, and it took many hours to get 41 that through my head, but that's the manner in which 42 it's described, and this -- my idea of the vertical 43 and horizontal is simply that it made it simpler for 44 me to see it, that's all, and I just offer that to the 45 court. In no way can you consider the aboriginal 46 title to be either above or beneath the Crown's title 47 because it's a totally separate concept. And I say 1272 Submissions by Mr. Williams 1 that's another reason why I say it's non-proprietary. 2 It's a burden. It's an obligation. 3 HUTCHEON, J.A.: It can compete with proprietary interest. 4 MR. WILLIAMS: Yes. 5 HUTCHEON, J.A.: It can compete equally with proprietary 6 interest. 7 MR. WILLIAMS: Well — 8 HUTCHEON, J.A.: That's the only reason they use different 9 names, to stop it from competing with proprietary 10 interest. Now, I -- 11 MR. WILLIAMS: I think that may be correct. I'd like to make 12 sure that I haven't -- 13 TAGGART, J.A.: You're not giving away the store. 14 MR. WILLIAMS: I just want to make sure — 15 TAGGART, J.A.: You can think about that while we're having a 16 break. 17 MR. WILLIAMS: I just want to make sure I didn't swallow a hand 18 grenade. 19 HUTCHEON, J.A.: I was using the quotation out of Guerin where 20 he said that in the past they had not elevated it to a 21 proprietary so as not to compete with proprietary 22 interest. 23 MR. WILLIAMS: But it certainly in some senses does compete. 24 HUTCHEON, J.A.: Well, that's what I wondered. 25 TAGGART, J.A.: Five minutes. 26 THE REGISTRAR: Order in court. 27 2 8 AFTERNOON RECESS 29 30 THE REGISTRAR: Order in court. 31 TAGGART, J.A.: Yes, Mr. Williams. 32 MR. WILLIAMS: My lords, I'll just read one more paragraph and 33 then get you off this vertical-horizontal plane so we 34 can go back to the next. Paragraph 38. Although the 35 Crown may be said to possess underlying title, 36 aboriginal rights are best viewed as a feature of a 37 nation to nation relationship on a "horizontal" plane 38 instead of rights derived from the Crown, such as 39 property rights, which reflect a "vertical" 40 relationship with the Crown. The extent to which the 41 Crown is free to regulate or extinguish this burden by 42 unilateral action, and legislate with respect to lands 43 and resources within the province notwithstanding the 44 presence of aboriginal rights, is addressed below. 45 And that sort of sums up what I was trying to say 46 about that. 47 So I move now to the scope and contents of the 1273 Submissions by Mr. Williams 1 aboriginal rights, and I say that I think Kruger put 2 it perhaps as well as it could be put. 3 4 "If the claim of any Band in respect of any 5 particular land is to be decided as a 6 justiciable issue and not a political issue, it 7 should be so considered on the facts pertinent 8 to that Band and to that land, and not on any 9 global basis." 10 11 "Cases on Indian or aboriginal rights can never 12 be determined in a vacuum. It is of importance 13 to consider the history and oral traditions of 14 the tribes concerned, and the surrounding 15 circumstances..." 16 17 So again we note here that the trial judge has 18 rejected much of the evidence, and the provincial 19 government supports the trial judge in that regard. 20 It doesn't mean to say though that in certain areas, 21 such as aboriginal rights, that general propositions 22 can't be made in your lordships' judgment, but not to 23 deal with, I say, with scope and content. 24 The precise bundle of rights that a particular 25 aboriginal community can assert may depend on a number 26 of factors, including the nature and the kind and the 27 purpose of use or occupancy of the land by the 28 aboriginal community in question, the extent to which 29 the use or occupancy was exclusive or non-exclusive, 30 the size of the territory over which there was use or 31 occupancy, the extent to which aboriginal people 32 possessed or occupied the land in question or simply 33 used the land as a non-possessory -- in a non- 34 possessory manner. And I have in mind here what I 35 already mentioned earlier, that the rights which they 36 have with respect to village sites would be put on a 37 much higher plane than the rights where they hunt 38 goats every two years, but that is not to say that the 39 place where they hunt goats is not a part of their 40 aboriginal claim. It simply is a use which is 41 considerably lower than the other one. 42 At one end of the spectrum of entitlements 43 aboriginal rights could include exclusive rights of 44 residence, use and enjoyment, exclusive rights to 45 hunt, trap, fish, as well as exclusive rights to the 46 use of forests. 47 At the other end of the spectrum the aboriginal 1274 Submissions by Mr. Williams 1 community could possess a single non-possessory right 2 to engage in a particular practice not in relation to 3 a particular plot of land but over some portion of 4 territory not otherwise taken up by competing users, 5 and that's the range. 6 The aboriginal rights with respect to land may 7 vary dramatically from community to community. 8 In paragraph 44 I say that the aboriginal rights 9 are not frozen by reference to the date of assertion 10 of the British sovereignty. Although an aboriginal 11 community must demonstrate that they constituted an 12 organized society and occupied or used the lands in 13 question at the time of British sovereignty, the 14 character, and perhaps I should substitute for that 15 the manner -- instead of saying character, I think 16 what's more accurate is the manner in which the right 17 is used, the manner of use of the rights that thereby 18 accrue to a community can evolve over time. While in 19 some contexts aboriginal rights may be restricted in 20 certain types of activity, modern as well as 21 traditional ways of engaging in the activity are 22 protected under the mantle of aboriginal rights, and I 23 think that's what's known as not freezing the rights. 24 I want to deal for just a moment with the frozen 25 rights because the suggestion in this factum is not 26 quite accurate at all. It's unfair to the learned 27 trial judge. It says the province submits that, with 28 deference to the views expressed by the learned trial 29 judge, the better view of the law is that aboriginal 30 rights are not frozen. It's not quite fair to the 31 trial judge to say that because in his reasons at page 32 390, which are in the book under tab 44 -- page 390. 33 It's about five pages in. Page 390. 34 TAGGART, J.A.: It is just ahead of the last green divider. 35 MR. WILLIAMS: I'm sorry, my lord. 36 TAGGART, J.A.: I say it is just ahead of the last green 37 divider. 38 MR. WILLIAMS: Yes. Thank you. He said this at the bottom last 39 paragraph under "Long-time aboriginal practices," 4 0 third line down: 41 42 "I have concluded that the aboriginal activities 43 recognized and protected by law are those which 44 were carried on by the plaintiffs' ancestors at 45 the time of contact or European influence and 46 which were still being carried on at the date 47 of sovereignty, although by then with modern 1275 Submissions by Mr. Williams 1 techniques." 2 3 So his lordship recognized and it's unfair to say 4 that he tried to say the rights were totally frozen 5 because he agrees they shouldn't be. But, on the 6 other hand, the -- I don't know whether there is -- 7 are there two pages in your lordship's factum, frozen 8 rights? 9 TAGGART, J.A.: There is one preceding that at 112. The page in 10 my book that precedes 390 in between the same green 11 sheets is 112 . 12 MR. WILLIAMS: No, I'm sorry, I was looking back at the factum. 13 LAMBERT, J.A.: Where do you want us to look? 14 MR. WILLIAMS: At page 19. 15 LAMBERT, J.A.: There is no heading "Frozen Rights". 16 MR. WILLIAMS: Perhaps I can simply say this, that the 17 respondents disagree that the aboriginal rights are to 18 be frozen, if there is indeed anyone who still thinks 19 they should, in the form found at the time of British 20 sovereignty, and this is in line with the -- defining 21 the practices or activities which are protected as 22 aboriginal rights, and they must be drawn -- the line 23 must be drawn somewhere. The respondent submits that 24 Madam Justice Wilson in Horseman suggested the 25 appropriate point at which to draw the line. Now, I 26 believe this is in tab 44, and it's page 367 of the 27 Horseman decision. After the first green sheet. 28 TAGGART, J.A.: 367? 29 MR. WILLIAMS: 367. It's about a quarter of the way down, after 30 the word "100 years". Just after the first green 31 sheet, page 367 of Horseman, and it's Madam Justice 32 Wilson. And she says this: 33 34 "Of course, the Indians' hunting and fishing 35 rights were to be preserved and protected; the 36 Indians could not have survived otherwise. But 37 this cannot mean that in 1990 they are to be 38 precluded from selling their meat and fish to 39 buy other items necessary for their sustenance 40 and the sustenance of their children. Provided 41 the purpose of their hunting is either to 42 consume the meat or to exchange or sell it in 43 order to support themselves and their families, 44 I fail to see why this is precluded by any 45 common sense interpretation of the words 'for 46 food'. It will, of course, be a question of 47 fact in each case whether a sale is made for 1276 Submissions by Mr. Williams 1 purposes of sustenance or for purely commercial 2 profit." 3 4 Now, I must say I'm not a hundred per cent 5 comfortable with that as a test, but as they say about 6 democracy, it's not very good, but it's better than 7 any other form of government. It's the best test I've 8 been able to come up with because nothing else seems 9 to work, and if we are fashioning new ways to deal 10 with these matters, then on a case by case basis, if 11 the aboriginal practice was -- or if the practice 12 that's being questioned was one which was for 13 sustenance, the trade was, then it would be allowed, 14 and if it was one which you could establish was purely 15 for commercial profit, then it would not. 16 TAGGART, J.A.: Of course, we have a test of that, of the scope 17 of that, in -- 18 MR. WILLIAMS: In Gladstone. 19 TAGGART, J.A.: — the B.C. Smokehouse case and in the 20 van der Peet case, each of them involving selling 21 fish. 22 MR. WILLIAMS: Gladstone -- one of the cases was a large, a very 23 large number of fish, 4,000 pounds. 24 TAGGART, J.A.: Well, it was — yes, it was. Legally caught. 25 MR. WILLIAMS: Yes. 26 TAGGART, J.A.: Legally caught in the sense that they were 27 caught under approved fish licence or other licence 28 and then sold. 29 MR. WILLIAMS: Well, it is a — I find it a very difficult area, 30 and as I say, we -- in difficult areas you try to find 31 what seems like a sensible solution and do the best 32 you can. That's the best that I have been able to do. 33 You have to ensure, as I say, ensure that there is 34 some flexibility in the exercise of the right with the 35 passage of time, but to ensure that these practices 36 remain rooted in an aboriginal context. And this is, 37 I think, consistent with the Attorney-General's 38 position in the Gladstone case. 39 The references, my lord, and this goes back to my 40 lord Justice Wallace's earlier question, the 41 references on the fur trade are to page 111, 111 of 42 the trial judgment. Now, that's in -- under tab 44, 4 3 same tab. 44 WALLACE, J.A.: 112, is it, the next page in your tab, paragraph 45 16? 46 MR. WILLIAMS: Well, that's another reference to the learned 47 trial judge saying that: 1277 Submissions by Mr. Williams 1 "The use of modern implements such as mechanical 2 traps and guns since the time of contact does 3 not change the nature of an aboriginal right." 4 5 I mean, it shows his awareness of that. 6 WALLACE, J.A.: No, I — oh, I see. Yes. 7 MR. WILLIAMS: Yes, I was looking for -- it's the next green 8 sheet after that, 111. There are two pages there I 9 want to refer to because this is evidence. He says in 10 111 under number 14: 11 12 "Prior to the commencement of the fur trade 13 these early aboriginals took some animals by 14 snares, dead falls and other means, but there 15 was no reason for them to travel far from their 16 villages or rivers for this purpose..." 17 18 That's the finding about the fact that trapping was 19 going on itself. 20 And on page 392, which is the next page, his 21 lordship says under "Commercial activities": 22 23 "While the Supreme Court of Canada will 24 ultimately be called upon to finally settle 25 this important question, I am not able to avoid 26 expressing an early judicial opinion. In my 27 view the purpose of aboriginal rights was to 28 sustain existence in an aboriginal society, 29 that is, to hunt and fish and collect the 30 products of the land and waters for the 31 survival of the communal group. There would 32 undoubtedly be some bartering but that would be 33 in sustenance products likewise obtained by 34 aboriginal practices." 35 36 And what I say from that is that in dealing with the 37 fur trade issue, that the bartering that took place 38 was for sustenance purposes, and that's a protected 39 right. The bartering that took place or might be 40 taking place now for commercial purposes would not. 41 And, my lords, that moves me over to page 20, and 42 I simply say that the -- this approach would permit 43 the aboriginal people to adapt to conditions that are 44 the result of colonization and not condemn them to 45 assimilation or antiquated practices. I think the 46 rest of it is -- you've heard before. 47 Well, I think the point I have to make on page 21 1278 Submissions by Mr. Williams 1 of my factum is to simply -- it's somewhat repetitive, 2 but to say that the more exclusive and extensive the 3 aboriginal use and occupation at the time of 4 sovereignty, the greater will be the variety of 5 protected uses. However, the more non-possessory and 6 use-specific the aboriginal rights, the more likely an 7 aboriginal community can only engage in the original 8 practice. And I say that adjustments to the content 9 of aboriginal rights will be required and that can 10 only be accomplished through negotiation. 11 Now, I'd like to move back to my speaking notes to 12 deal with the concept of ownership, and that is at 13 page 5 of the speaking notes. And as I explained at 14 the beginning, we didn't break down our factum into 15 what I think it's now important it be broken down 16 into, and I've dealt with the first part of aboriginal 17 rights, and I move on to ownership. I say firstly -- 18 and again, I will follow the same format in the 19 speaking notes, to tell you the appellants' position, 20 the respondent's position, and what the trial judge 21 did. The appellants are not satisfied to rest their 22 case upon a claim for aboriginal rights. They claim 23 ownership to the land, and by that I am assuming, my 24 lords, that it's something roughly equivalent to a fee 25 simple ownership that they're claiming. 26 HUTCHEON, J.A.: And you've said that that's no longer being 27 pursued? 28 MR. WILLIAMS: Well, I am understanding from my colleagues that 29 on Monday that it was suggested that there be some 30 interim declaration. I am suggesting, and I wish to 31 continue arguing, that ownership should be decided. 32 HUTCHEON, J.A.: In Ms. Mandell's notes on page 5 the language 33 is the rights include a proprietary interest in the 34 territory, and it's not full ownership, but you want 35 to pursue the full ownership? 36 MR. WILLIAMS: I'm afraid I have to for two reasons. One is I 37 don't agree with leaving it hanging, and I don't 38 agree -- and I think the proprietary interest may be 39 something I have to deal with in the ownership notes 4 0 that I've got. 41 The definition of ownership I have set out here 42 is: 43 44 "...the most extensive right allowed by law to a 45 person, of dealing with a thing to the 46 exclusion of all other persons, or of all 47 except one or more specified persons. It is 1279 Submissions by Mr. Williams 1 therefore a right in rem... Ownership is 2 essentially indefinite in its nature, but in 3 its most absolute form it involves the right to 4 possess and use or enjoy the thing, the right 5 to its produce and accessions, and the right to 6 destroy, encumber or alienate it... In English 7 law absolute ownership can only exist in 8 chattels as all land is subject theoretically 9 to the obligations of tenure; but practically 10 the fee simple in the land gives absolute 11 ownership..." 12 13 That's from Jowitt's Dictionary. 14 And the appellants' position appears from their 15 pleadings on paragraph 211, and that's in the white 16 book under E. It's after the first three white pages, 17 the first green sheet in E. 18 19 "The appellants submit that when an aboriginal 20 group has exclusive possession of land within 21 defined boundaries, and can pass that land to 22 other aboriginals by alienation or inheritance, 23 then its interest in the land is properly 24 characterized as ownership." 25 26 Now, that's the claim, and I say that the trial 27 judge was correct in rejecting as a matter of law the 28 appellants' claim of ownership. Even if the 29 occupation of the land by the appellants' ancestors 30 did amount to ownership prior to sovereignty, and we 31 don't admit that it did, but even if it did amount to 32 ownership prior to sovereignty, it did not survive the 33 assertion of sovereignty. And this is so because it's 34 impossible to conceive of ownership, as we understand 35 that phrase, to be in the hands of the appellants 36 while they're at the same time acknowledging that the 37 Crown acquired the underlying title when sovereignty 38 was asserted in 1846. There can't be, in this sense, 3 9 two owners. 40 The inalienability feature I've already pointed 41 out in reference to the previous notes, but the 42 inalienability feature of the sui generis interest in 43 respect of land is an important reason for finding 44 that it couldn't possibly be ownership. And I've 45 already dealt with the surrender of rights and, again, 46 the Smith case there. 47 The failure of the appellants to prove exclusive 1280 Submissions by Mr. Williams 1 use or occupation is another fatal blow. I'm on page 2 6 of my notes after the St. Catherine's case. As I 3 say, the failure of the appellants to prove exclusive 4 use or occupation is another fatal blow to the 5 establishment of ownership. 6 The bulk of the evidence that they put in was 7 directed not to aboriginal rights, but was directed to 8 ownership of the whole territory. 9 Whatever interest the appellants had, it was 10 clearly not ownership under the Canadian law, and 11 their claim is not supported by any authority, and 12 that's mentioned by Chief Justice Dickson in the 13 Guerin case when he says: 14 15 "Indians have a legal right to occupy and 16 possess certain lands, the ultimate title to 17 which is in the Crown. While their interest 18 does not, strictly speaking, amount to 19 beneficial ownership, neither is its nature 20 completely exhausted by the concept of a 21 personal right." 22 23 So ownership is denied in law. And Sparrow states 24 at the bottom of that page, the last three lines: 25 26 "...there was from the outset never any doubt 27 that sovereignty and legislative power, and 28 indeed the underlying title, to such lands 29 vested in the Crown." 30 31 St. Catherine's says the same thing, and I won't 32 repeat that clause. Bear Island says the same thing. 33 I say that the province generally adopts the 34 submissions in the previous factum of the province, 35 Part IX, on the issue of ownership and says that as a 36 matter of law the trial judge was quite correct in 37 dismissing the claim. 38 That takes us to G. I say that the -- and this is 39 only for the convenience of your lordships really that 40 the -- I'm not going to refer to them. The learned 41 trial judge's principle findings in reference to the 42 issue of ownership appear at pages, and they're listed 43 there. And they're in the white book. They're all in 44 the white book for you, but I'm not going to be 45 referring to them. Just one reference that appears 46 here where the judge said: 47 1281 Submissions by Mr. Williams 1 "To put it differently, I have no doubt that 2 another people, such as the Nishga or Talthan, 3 if they wished, could have settled at some 4 location away from the Gitksan or Wet'suwet'en 5 villages and no law known to me would have 6 required them to depart." 7 8 Now, I realize there's some conflict on that, and 9 the evidence that was put in by my friend Mr. Rush 10 dealt with somebody floating down a stream and the 11 neighbours dealing with each other on trespass issues. 12 That was not considered to be sufficient to establish 13 it, and we accept the findings of the learned trial 14 judge. 15 It's the respondent province's first position that 16 since the appellants have failed as a matter of law to 17 establish a right to ownership of the lands, no 18 discussion on the evidence is necessary, but the 19 learned trial judge did, as an alternative ground for 20 disposing of the claim, hold that as a matter of fact 21 the appellants had, in any event, failed to establish 22 the claim for ownership. 23 And the province urges this court to accept 24 generally the findings of fact of the learned trial 25 judge in reference to ownership but underlines the 26 need to distinguish the application of those findings 27 in reference to the issue of ownership and the issue 28 of aboriginal rights which are addressed elsewhere. 29 His findings principally are found at pages 372-373, 30 and if I may, I'll just run through them because it's 31 important to keep them in mind. 32 The respondent's comments on the facts are then 33 these. It may not be a fair characterization of the 34 evidence to say that the appellants' ancestors "lived" 35 only in their villages. They certainly used and 36 occupied other parts of the territory for various 37 "living" purposes ranging from seasonal residence to 38 gathering berries. Certainly, though, this presence 39 in the territory was not proved to be so extensive and 40 exclusive as to amount to ownership of the whole 41 territory. 42 While the appellants' ancestors harvested their 43 subsistence requirements from parts of the territory, 44 the evidence didn't establish a policy for management 45 of the territory claimed or concerted communal 46 conservation. 47 To govern themselves according to limited self- 1282 Submissions by Mr. Williams 1 governance does not establish that they owned the 2 land. 3 While the appellants maintained institutions, the 4 evidence did not establish that all of their present 5 institutions were recognized by their ancestors. 6 While the ancestors may have expressed their 7 "ownership" of the territory through their regalia and 8 adaawk, kungax and songs, these items are not 9 sufficiently site-specific to assist the appellants to 10 discharge the burden of proof. 11 There's sufficient doubt about the antiquity of 12 the crests and poles to doubt the claim of ownership. 13 While the feasts system evolved -- 14 HUTCHEON, J.A.: I'm sorry, when they say doubt about the 15 antiquity, how far is it recognized by the province 16 that the crests and poles go back because it just 17 seems to me it wouldn't be suddenly in 1892 they'd 18 start to develop crests? 19 MR. WILLIAMS: No, I don't — I'm not suggesting for a moment 20 that the trial judge found that. I think that the 21 reference -- I'll just see if I can find it, but the 22 reference that I'm -- what I'm trying to say here is 23 that I believe the trial judge was saying that the 24 mere fact that they had even since time immemorial 25 developed crests and poles does not establish clearly 26 to his mind that it's an ownership -- that it means 27 ownership. 28 HUTCHEON, J.A.: Oh, yes. Well, I can find that part. Perhaps 29 we shouldn't hesitate over this then, but I'm just 30 wondering about the antiquity part. It may not be 31 significant. 32 MR. WILLIAMS: We'll make a note and take a look at that over 33 the weekend. But the only point I'm making here is 34 that even if the crests and the poles could satisfy 35 the antiquity test, that is not conclusive evidence of 36 ownership. That's what I was trying to say. 37 HUTCHEON, J.A.: I understand. All right. 38 MR. WILLIAMS: While the feast system evolved from earlier 39 practices and played an important role in the social 40 organization of the present day Gitksan, there's 41 sufficient doubt about its role in the management and 42 allocation of land, and the evidence is at least 43 equivocal about the role in the use and control of 44 land generally that it does -- therefore, it does not 45 confirm ownership of the territory. 46 We say that the appellants have not proven the 47 Gitksan and Wet'suwet'en had exclusive possession of a 1283 Submissions by Mr. Williams 1 well-defined territory, which they defended against 2 all intruders or trespassers, and the trial judge said 3 in that regard: 4 5 "There seemed to be so many intrusions into the 6 territory by other peoples that I cannot 7 conclude the plaintiffs' ancestors actually 8 maintained their boundaries or even their 9 villages against invaders, although they 10 usually resumed occupation of specific 11 locations for obvious economic reasons. As 12 recently as the 1890s Loring found Indians in 13 defensive, winter locations away from their 14 villages and I am uncertain the plaintiffs' 15 ancestors maintained any boundaries." 16 17 Yet the appellants admit that to be an owner one has 18 to have the right to exclude others. They say that, 19 and I'll read again from 211, when an aboriginal group 20 has exclusive possession of land within defined 21 boundaries, it has ownership. Well, they didn't prove 22 exclusivity. 23 Number 9, the appellants failed to prove the right 24 of exclusive possession both in respect of the 25 internal boundaries and the external boundaries. And 26 your lordships will recall the learned trial judge 27 rejected the submission of the appellants on the 28 internal boundaries of the claim area for four main 29 reasons. Firstly, he didn't accept the territorial 30 affidavits. Secondly, he said that the maps that were 31 presented by the appellants with their internal 32 boundaries had conflicting boundaries. Thirdly, the 33 claims by other tribes overlapped with claims to the 34 territory made by the Gitksan and Wet'suwet'en. And 35 fourthly, the plaintiffs' evidence of internal 36 boundaries is based largely on the trapline 37 registration boundaries. And that all appears in the 38 references that I've given you here. They're in the 39 white book. 40 The appellants don't challenge the ruling of the 41 trial judge with respect to the internal boundaries. 42 They say that the findings on the internal boundaries 43 "do not alter the land proved to belong to the Gitksan 44 and Wet'suwet'en within the external boundaries, and 45 distinct from that of their aboriginal neighbours." 46 The province disagrees that the trial judge's findings 47 on the issue of internal boundaries are as 1284 Submissions by Mr. Williams 1 inconsequential as the appellants suggest they are. 2 And just to end this one off, just four lines above 3 (b), having failed to prove that any House had or 4 maintained boundaries, let alone exclusive boundaries 5 to this territory, notwithstanding expending great 6 time and effort in attempting to do so, the appellants 7 must be held to have failed to prove their claim of 8 ownership. 9 Now, under (b) on the external boundaries, and I 10 say, first of all, that it was "the result of all the 11 internal boundaries," the failure to prove the 12 internal boundaries then seriously has to undermine 13 any attempt to prove the external ones. 14 The trial judge found the appellants failed to 15 prove exclusive possession within external boundaries 16 at 441 when he said correctly, in our view: 17 18 "It can hardly be said that the plaintiffs' 19 claims are undisputed, particularly on the 20 external boundaries, which are the subject of 21 numerous overlapping claims by other Indian 22 peoples. A claim to an exclusive interest in 23 land against the Crown, based upon reputation 24 for long-time use, would require very strong 25 evidence." 26 27 I think it's fair to say that when you're trying 28 to prove ownership of anything it requires very strong 29 evidence, and the trial judge's concern was it wasn't 30 there. The trial judge said that the evidence of 31 overlapping claims disclosed: 32 33 "...conflicting claims both along the external 34 boundary, and indeed into the very heartland of 35 the territories claimed by the Gitksan and 36 Wet'suwet'en peoples in this action. These 37 claims are advanced by Tsimshian, Nishga, 38 Kitwankool, Tahltan/Stikine, Tsetsaut, 39 Kaska-Dene, and Carrier-Sekanni peoples. It 40 was not made clear to me what position the 41 Babine people take with respect to this matter, 42 but there seems to be much uncertainty about 43 the Bear Lake area. The position of the 44 Cheslatta bands is also uncertain, but they and 45 the Babine Indians have many reserves in the 46 southern part of the territory claimed by the 47 Wet'suwet'en. The validity of these 1285 Submissions by Mr. Williams 1 conflicting claims has not been proven, but the 2 very fact that such claims have been made 3 cannot be overlooked in any discussion about a 4 certain reputation for 'undisputed' ownership 5 or occupation of lands." 6 7 And the trial judge, I point out, my lords, also 8 expressed concern about neighbours with conflicting 9 claims who weren't party to the proceedings, that it 10 would be a concern to him that they weren't there. 11 Given that the claims have been accepted by the 12 federal government for negotiation, without prejudice, 13 without admitting that the claim is valid they 14 accepted it as a claim, and that they necessarily 15 relate to claims of aboriginal people at the time of 16 sovereignty, if not earlier, it cannot be said that 17 the appellants' claim of ownership based on the 18 reputation evidence is sufficiently trustworthy to be 19 accepted as a fact. 20 I say that -- two things here, and I'll just make 21 reference to the reasons at page 440. Let's see, that 22 I think is -- yes, it is. It's in the white book 23 under this tab, which is tab I. There are quite a 24 number of pages from the judgment in here which relate 25 to the ownership issue, and therefore they're easy 26 reference when you're going through my notes, but this 27 one is at 440, which is after the second green sheet. 28 You'll see it starts with 431, 434, and 440. And he 29 makes this observation. He says -- he's coming 30 through and saying it poses serious difficulties. 31 Halfway down: 32 33 "Thirdly, the defendants question the 34 reputation," 35 36 et cetera. Then it says: 37 38 "Even within the plaintiffs' community, 39 details of boundaries were not widely known. 40 Alfred Joseph said chiefs are very reluctant to 41 talk to other Wet'suwet'en about their 42 territory; Art Mathews Jr. said it is hard to 43 follow a chief's boundary descriptions because 44 'they have a language unique of their own'... 45 and several witnesses said they had seldom, if 46 ever, heard their own boundaries described in 47 the feast hall. There has been no reputation 1286 Submissions by Mr. Williams 1 proven in the non-Indian community." 2 3 And he says -- in addition to that he points out, 4 back at my notes, he says that indeed the trial judge 5 observed that even within their own community, of 6 course. Then it says, but I say that long time 7 non-natives were also unaware of the ownership claims, 8 and that's the Cyril Shelford excerpt. 9 10 "...it is impossible to infer a community 11 reputation for an interest in land when a 12 prominent, life-long resident in the area like 13 Mr. Shelford, a member of the legislature for 14 many years, and a cabinet minister for a time, 15 who acknowledges hearing about general land 16 claims for a long time, has never heard until 17 very recently of claims of ownership or 18 jurisdiction, or claims to specific lands, 19 including his own, by chiefs whose families he 20 has known personally for most of his life." 21 22 The province says that the appellants have failed 23 to show the trial judge's treatment of the evidence by 24 Dr. Ray amounted to a clear and palpable error, and 25 furthermore, that the Hudson Bay records or the 26 evidence of Dr. Ray established the appellants' 27 ancestors had exclusive possession of the territory 28 claimed. I don't dispute the value of the Hudson Bay 29 records for many purposes that my friends wish to 30 advance it, but it's my submission that it does not, 31 the Hudson Bay records and the Ray evidence does not 32 establish to the degree of proof that's required 33 ownership as advanced. 34 Dr. Robinson, one of the experts, concluded that 35 the Gitksan-Wet'suwet'en laws about traditionally 36 having owned and managed certain territories are 37 questionable. Dr. Robinson's conclusions are 38 supported by a number of others, and they're listed 39 there. 40 Now, my lords, on page 12 I say that we must also 41 support the trial judge in reference to his decision 42 on the value of the oral histories. He said at page 43 181: 44 45 "...the adaawk are seriously lacking in detail 46 about the specific lands to which they are said 47 to relate. In this case, as I shall have 1287 Submissions by Mr. Williams 1 occasion to mention again, the plaintiffs are 2 seeking exclusive rights to specific lands. 3 Specificity far in excess of what the adaawk 4 provide would be required to support an 5 interest in land. Many adaawk and kungax could 6 relate to any number of locations." 7 8 And later on, at page 373, the trial judge says 9 that the regalia, adaawk, kungax, and songs are not 10 sufficiently site-specific to assist the plaintiffs in 11 discharging their burden. 12 The oral histories, adaawk and kungax, of the 13 Gitksan-Wet'suwet'en perform many important functions. 14 The trial judge says at 179 they represent an 15 unwritten collection of important history, legend, 16 laws, ritual and traditions of the House, including a 17 description of its territories. The trial judge found 18 that for the purpose of proving ownership of land they 19 didn't meet the standards required. 20 The adaawk may be sufficient to prove the 21 existence of at least some measure of self-governance, 22 I say. For example, the Tenimgyet adaawk explains how 23 two Houses amalgamated and one of the names carries a 24 curse which results in the head of the House being 25 seated further down the feast. And we have, of 26 course, the -- the adaawk presumably performs a role 27 then in, at least to that extent, in self-government. 28 Then we have the adaawk which is in reference to 29 the Madeek, the Seeley Lake Madeek, and the 30 consistency between the Madeek adaawk and the actual 31 evidence that was put forth, 3500 years ago. The fact 32 that the oral histories exist then is evidence of a 33 degree of organization and cohesiveness among the 34 Gitksan-Wet'suwet'en, and it supports their claim for 35 certain rights. What it doesn't do is it doesn't 36 prove ownership. 37 And I want to comment on the foreign decisions 38 now, to move to the foreign decisions on ownership 39 rights. These were quite important in the view of the 40 appellants, and I don't for a moment denigrate the 41 importance of them as background, and I say that with 42 respect to the -- and I'm talking now about the United 43 States, Africa, and New Zealand, and I say that those 44 decisions are of importance. They demonstrate what 45 was the historical background in North America and in 46 New Zealand and in Africa in a relatively similar time 47 frame. They demonstrate what was happening in a 1288 Submissions by Mr. Williams 1 colonial way, and they show interesting historical 2 background, but neither for what we're doing here in 3 Canada. But the problem I have is that as interesting 4 as it is, and as fair as it may be in comparison with 5 some of the positions that have been taken in our 6 country, they simply can't compete with Canadian law. 7 It's that simple. I would like to think that some of 8 the Marshall decisions are very, very wise decisions 9 that maybe should have been adopted in certain areas 10 of Canada, and I don't say in British Columbia, but 11 maybe should have been adopted in certain areas of 12 Canada, and indeed even in British Columbia. What I 13 do say is that those cases and the conventions simply 14 can't compete with the law of Canada, which is binding 15 upon this court and which I must respect in presenting 16 my argument to you. 17 So taken as a whole, though, even though they have 18 that value, taken as a whole the Marshall decisions do 19 not establish that Indians in the United States had an 20 ownership interest in land. They're of some real 21 value to the appellants in other areas, perhaps the 22 consent area and so on, but they don't establish that 23 they had an ownership interest in land, and I think 24 the only case I need to refer to there is the Guerin 25 case. This again this is under tab J, and -- 26 TAGGART, J.A.: Guerin is about the second green sheet in, I 27 think. 28 MR. WILLIAMS: Yes. 29 TAGGART, J.A.: 380, Guerin at page 380? 30 MR. WILLIAMS: What I'm looking for, there's a long — well, it 31 may be quicker if I refer to the Johnson v. M'Intosh. 32 It's page 688 to 692. What happened was that there's 33 a quote from the -- a long quote, I thought it was in 34 Guerin, from the Johnson v. M'Intosh one, and it sort 35 of saved me from going to both, but I haven't found 36 it. 37 TAGGART, J.A.: Well, there's a Johnson v. M'Intosh. 38 MR. WILLIAMS: Yes, it's the first green page in. I'll go from 39 there. 40 TAGGART, J.A.: After the first green divider? 41 MR. WILLIAMS: Oh, we've got it on the Guerin — no, sorry. 42 It's, let's see, one, two -- third green sheet in. 43 TAGGART, J.A.: 377? 44 MR. WILLIAMS: It's 377 at the bottom, and they're quoting 45 from -- 46 47 "In Johnson v. M'Intosh Marshall C.J., 1289 Submissions by Mr. Williams 1 although he acknowledged the Proclamation of 2 1763 as one basis for recognition of Indian 3 title, was nonetheless of (the) opinion that 4 the rights of Indians in the lands they 5 traditionally occupied prior to European 6 colonization both predated and survived the 7 claims to sovereignty made by various European 8 nations in the territories of the North 9 American continent. The principle of discovery 10 which justified these claims gave the ultimate 11 title in the land in a particular area to the 12 nation which had discovered and claimed it. In 13 that respect at least the Indians' rights in 14 the land were obviously diminished; but their 15 rights of occupancy and possession remained 16 unaffected." 17 18 And then he goes on to quote from that judgment. And 19 the point I am making here is simply that recognized 20 by Chief Justice Dickson and quoting from Johnson v. 21 M'Intosh and indeed the Johnson v. M'Intosh case -- 22 MACFARLANE, J.A.: Is this after the first green sheet? 23 MR. WILLIAMS: Perhaps I should read that. It's just after the 24 first green sheet. It's page 570, I think it is, or 25 1623 on the right-hand side. At the very bottom of 2 6 the right-hand column you can see: 27 28 "Mr. Chief Justice Marshall delivered the 29 opinion of the court." 30 31 Then at the very right it says: 32 33 "In the establishment of these relations, 34 the rights of the original inhabitants were, in 35 no instance, entirely disregarded; but were 36 necessarily, to a considerable extent, 37 impaired. They were admitted to be the 38 rightful occupants of the soil, with a legal as 39 well as just claim to retain possession of it, 40 and to use it according to their own 41 discretion; but their rights to complete 42 sovereignty, as independent nations, were 43 necessarily diminished, and their power to 44 dispose of the soil at their own will, to 45 whomsoever they pleased, was denied by the 46 original fundamental principle that discovery 47 gave exclusive title to those who made it. 1290 Submissions by Mr. Williams 1 While the different nations of Europe 2 rej ected," 3 4 and then he goes on from there, 5 6 "rejected the right of the natives, as 7 occupants, they asserted the ultimate dominion 8 to be in themselves; and claimed and exercised, 9 as a consequence of this ultimate dominion, a 10 power to grant the soil, while yet in 11 possession of the natives." 12 13 So there is no comfort to be gained, in my 14 respectful submission, from these foreign judgments, 15 the Marshall decisions, in reference to the issue of 16 ownership. 17 And over the page, page 14 on my notes, I say 18 that, under paragraph number 3, similarly it's our 19 submission that the Amodu Tijani and the Symonds 20 decision occurred -- do not really give that much 21 assistance either for a number of reasons. We have 22 the same kind of basic allodial title, the Queen owns 23 all, sovereignty concept that we've heard so much 24 about, but in addition we have in -- the African case 25 and the New Zealand case occurred in a very different 26 historical and factual context, and it makes them of 27 great interest from an historical perspective, but of 28 limited value as a legal precedent in the case at bar. 29 The Symonds decision occurred in the context of a 30 statute which specifically governed the grant in 31 question, the Treaty of Waitangi, and the Treaty of 32 Waitangi, as you'll see, told them that they could 33 keep possession as long as they wanted. It ought to 34 be seen as a codifying of the common law of aboriginal 35 rights. I am aware my friends distinguish that 36 case -- 37 HUTCHEON, J.A.: It ought not to be seen. 38 MR. WILLIAMS: Pardon? 39 HUTCHEON, J.A.: You left out the negative. 40 MR. WILLIAMS: That's right. 41 HUTCHEON, J.A.: You didn't mean to do that? 42 MR. WILLIAMS: No. An accident, my lord. In the Symonds 43 case -- there was a case that followed that that my 44 friends dealt with called Tamaki. It was cited by the 45 appellants in argument as approving the Symonds 46 decision. The statement by the Privy Council at 578 47 of Tamaki doesn't approve the Symonds decision. It 1291 Submissions by Mr. Williams 1 merely says that extinguishment must be in accordance 2 with the terms of the Treaty of Waitangi and the 3 various statutes that implemented the treaty. The 4 treaty is by its terms permitting aboriginal people to 5 retain land in their possession so long as they wish 6 to. And if you will just turn to the tab here, it's 7 J. Yes, it's Lord Davey. It's page 566. Let's see, 8 how far in is it? I think it's closer to the back. 9 Let's go from the back, if I may. There's one green 10 sheet gone, two green sheets gone, three green sheets, 11 and it's a three-page decision. Three green sheets to 12 the wind. Okay. 13 WALLACE, J.A.: Bottom of 566, that's what you're referring to? 14 MR. WILLIAMS: Yes. They had mentioned the Treaty of Waitangi, 15 Lord Davey, the Treaty of Waitangi is as follows, 16 article first, article second, and over on the next 17 page it says, and all this is part of the treaty: 18 19 "...and other properties which they may 20 collectively or individually possess, so long 21 as it is their wish and desire to retain the 22 same in their possession." 23 24 Now, that's the difference between the treaty and 25 what's happened here. And then over on the next page, 26 578, he says: 27 28 "Their lordships, therefore, think that, if the 29 appellant can succeed in proving that he and 30 the members of his tribe are in possession and 31 occupation of the lands in dispute under a 32 native title which has not been lawfully 33 extinguished, he can maintain this action to 34 restrain an unauthorized invasion of his 35 title." 36 37 So that's a different situation. 38 And then finally, I'll deal with the Amodu Tijani 39 and say that with respect to that case, first of all, 40 there is an acknowledgment here whether they actually 41 fitted it in or not. It was a settlement or discovery 42 mode. It was a settlement or discovery that they were 43 supposed to have done in Canada, and -- as opposed to 44 conquest, and the Amodu case, of course, is one which 45 involved conquest, and the situation there is opposed 46 to settlement, and there the chiefs could convey their 47 land, the head chief could convey the land. The case 1292 Submissions by Mr. Williams 1 also involved aboriginal people who had established a 2 system of rental for the land that they occupied and a 3 number of other different features, so that the court 4 in that case considered many historical documents 5 specific to the case, and the case by virtue of its 6 facts, I say, cannot stand for the general proposition 7 that my friends advance it for, that all aboriginal 8 people own their land. 9 Finally then, the Amodu case is cited by the 10 appellants for the proposition that the aboriginal 11 ownership must be determined with respect to the 12 habits and modes of life of the aboriginal people, but 13 we submit that the proper test in Canada for 14 evaluating the rights would be, and I'll stop here and 15 say either Baker Lake or the Baker Lake -- Baker Lake 16 changes. 17 And in conclusion on this issue, I say that there 18 is no way that the appellants can be permitted to win 19 on the question of ownership. Thank you, my lord. 20 TAGGART, J.A.: Thank you, Mr. Williams. We'll adjourn now 21 until Monday next. 22 THE REGISTRAR: Order in court. Court stands adjourned until 23 ten o'clock Monday. 24 25 (PROCEEDINGS ADJOURNED AT 4:05 P.M.) 26 27 I hereby certify the foregoing to 28 be a true and accurate transcript 29 of the proceedings transcribed to 30 the best of my skill and ability. 31 32 33 34 35 36 Leanna Smith 37 Official Reporter 38 UNITED REPORTING SERVICE LTD. 39 40 41 42 43 44 45 46 47
Trial proceedings
British Columbia
KEB529.5.L3 B757
English
Uukw, Delgam, 1937-
Indigenous peoples--Canada
Oral history
Wet'suwet'en First Nation
Vancouver : University of British Columbia Library
Vancouver : United Reporting Service Ltd.
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Original Format: University of British Columbia. Library. Law Library.
[British Columbia Court of Appeal 1992-05-29]
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