IN THE SUPREME COURT OF CANADA

Transcription

1 Court File No IN THE SUPREME COURT OF CANADA (On Appeal from the New Brunswick Court of Appeal) BETWEEN: HER MAJESTY THE QUEEN Appellant AND: DALE SAPPIER AND CLARK POLCHIES Respondents AND: ATTORNEY GENERAL OF NOVA SCOTIA, ATTORNEY GENERAL OF NEWFOUNDLAND, ATTORNEY GENERAL OF QUEBEC, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF BRITISH COLUMBIA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF ALBERTA, UNION OF NEW BRUNSWICK INDIANS, FOREST PRODUCTS ASSOCIATION OF NOVA SCOTIA ("FPANS"), MI'GMAWEI MAWIOMI, NEW BRUNSWICK ABORIGINAL PEOPLES COUNCIL, ASSEMBLY OF FlRST NATIONS, NEW BRUNSWICK FOREST PRODUCTS ASSOCIATION, ASSEMBLY OF NOVA SCOTIA MI'KMAQ CHIEFS, OKANAGAN NATION ALLIANCE AND SHUSWAP NATION TRIBAL COUNCIL, CONGRESS OF ABORIGINAL PEOPLES ("CAP") AND SONGHEES INDIAN BAND, MALAHAT FlRST NATION, T'SOU-KE FlRST NATION, SNAW-NAW-AS (NANOOSE) FlRST NATION AND BEECHER BAY INDIAN BAND (COLLECTIVELY TE'MEXW NATIONS) Interveners Court File No IN THE SUPREME COURT OF CANADA (On Appeal from the New Brunswick Court of Appeal) BETWEEN: HER MAJESTY THE QUEEN Appellant AND: DARRELL JOSEPH GRAY Respondent AND: ATTORNEY GENERAL OF NOVA SCOTIA, ATTORNEY GENERAL OF NEWFOUNDLAND, ATTORNEY GENERAL OF QUEBEC, ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF BRITISH COLUMBIA, UNION OF NEW BRUNSWICK INDIANS, FOREST PRODUCTS ASSOCIATION OF NOVA SCOTIA ("FPANS"), MI'GMAWEI MAWIOMI, NEW BRUNSWICK ABORIGINAL PEOPLES COUNCIL, ASSEMBLY OF FlRST NATIONS, NEW BRUNSWICK FOREST PRODUCTS ASSOCIATION, ASSEMBLY OF NOVA SCOTIA MI'KMAQ CHIEFS, OKANAGAN NATION ALLIANCE AND SHUSWAP NATION TRIBAL COUNCIL, CONGRESS OF ABORIGINAL PEOPLES ("CAP") AND SONGHEES INDIAN BAND, MALAHAT FlRST NATION, T'SOU-KE FlRST NATION, SNAW-NAW-AS (NANOOSE) FlRST NATION AND BEECHER BAY INDIAN BAND (COLLECTIVELY TE'MEXW NATIONS) Interveners FACTUM OF THE INTERVENERS SONGHEES INDIAN BAND, MALAHAT FlRST NATION, T'SOU-KE FlRST NATION, SNAW-NAW-AS (NANOOSE) FlRST NATION AND BEECHER BAY INDIAN BAND (COLLECTIVELY "TE'MEXW NATIONS")

2 Robert J. M. Janes Cook, Roberts 7th Floor Douglas Street Victoria, British Columbia V8W2E1 Telephone (w) : (250) I Fax : (250) Songhees Indian Band, Malahat First Nation, T'Sou-ke First Nation, Snawnaw-as (Nanoose) First Nation and Beecher Bay Indian Band (collectively Te'mexw Nations) Brian A. Crane, Q.C. Gowling Lafleur Henderson LLP Elgin St Box 466 Station D KlPlC3 Telephone (w) : (6 13) Fax : (613) Brian.Crane@gowlings.com Agent for the Intervenor Songhees Indian Band, Malahat First Nation, T'Sou-ke First Nation, Snawnaw-as (Nanoose) First Nation and Beecher Bay Indian Band (collectively Te'mexw Nations) Michael J. Wood, Q.C. Burchell Hayrnan Parish 1801 Hollis Street, Suite 1800 Halifax NS B3J 3N4 Tel: (902) Fax: (902) mwood@;burchells.ca New Brunswick Aboriginal Peoples Council William B. Richards Attorney General of New Brunswick Public Prosecutions Branch P.O. Box 6000, Carleton Place Fredericton, New Brunswick E3C5H1 Telephone (w) : (506) Fax : (506) bill.richards@gnb.ca Counsel for the Appellant Her Majesty the Queen Richard Hatchette Saint John River Tribal Council 7 Wulastook Court Woodstock First Nation, New Brunswick E7M4K6 Telephone (w) : (506) Ext: 0129 Fax : (506) Counsel for the Respondents Dale Sappier and Clarke Polchies Brian A. Crane, Q.C. Gowling Lafleur Henderson LLP Elgin Street, Box 466 Station D Ottawa, ON KIP 1C3 Tel: (902) Fax: (613) Brian.Crane@gowlin~s.com Agent for the Intervenor New Brunswick Aboriginal Peoples Council Henry S. Brown, Q.C. Gowling Lafleur Henderson LLP Elgin St P.O. Box 466, Stn "D" K1 P1 C3 Telephone (w) : (6 13) Fax : (613) henry.brown@gowlings.com Agent for the Appellant Her Majesty the Queen Dougald E. Brown Nelligan O'Brien Payne LLP Slater St Kl P5Hl Telephone (w) : (61 3) Fax : (6 1 3) Agent for the Respondents Dale Sappier and Clarke Polchies

3 Thomas J. Burke Gafhey & Burke 466 Bowlen Street Fredericton, New Brunswick E3A2T4 Telephone (w) : (506) Fax : (506) gaffnevburke@nb.aibn.com Counsel for the Respondent, Darrell Joseph Gray Alexander MacBain Cameron Attorney General of Nova Scotia 3rd Floor Terminal Rd P.O. Box 7, Stn Central Halifax, Nova Scotia B3J2L6 Telephone (w) : (902) Fax : (902) cameroam@gov.ns.ca Attorney General of Nova Scotia Donald H. Burrage, Q.C. Attorney General of Newfoundland and Labrador Confederation Building P.O. Box 8700 St. John's, Newfoundland & Labrador A 1 B4J6 Telephone (w) : (709) Fax : (709) donb@;nov.nf.ca Attorney General of Newfoundland Dougald E. Brown Nelligan OtBrien Payne LLP Slater St Kl P5H 1 Telephone (w) : (613) Fax : (613) Agent for the Respondent, Darrell Joseph Gray Stephen J. Grace Maclaren Corlett Suite O'Connor Street KlP6L2 Telephone (w) : (61 3) Fax : (613) sgrace~macorlaw.com Agent for the Intervenor Attorney General of Nova Scotia Robert E. Houston, Q.C. Burke-Robertson 70 Gloucester Street K2POA2 Telephone (w) : (613) Fax : (61 3) Agent for the Intervenor Attorney General of Newfoundland Rent5 Morin Procureur general du Quebec 1200, route de 1'~~lise 2e etage Sainte-Foy, Quebec GlV4M1 Telephone (w) : (418) Fax : (4 18) rmorin@,iustice.gouv.qc.ca Attorney General of Quebec Sylvie Roussel Noel & Associes 1 1 1, rue Champlain Gatineau, Quebec J8X3Rl Telephone (w) : (819) Fax : (819) s.roussel@noelassocies.com Agent for the Intervenor Attorney General of Quebec

4 Mitchell R. Taylor Attorney General of Canada Howe Street Vancouver, British Columbia V6Z2S9 Telephone (w) : (604) Fax : (604) mitch.taylor@,iustice.~c.ca Attorney General of Canada Patrick G. Foy, Q.C. Borden Ladner Gervais LLP 1200 Waterfront Centre, 200 Burrard St. P.O. Box 48600, Stn. Bentall Ctr Vancouver, British Columbia V7X 1 T2 Telephone (w) : (604) Fax : (604) pfoy@blgcanada.com Attorney General of British Columbia Robert J. Normey Attorney General of Alberta 4th Floor, Bowker Building th Street Edmonton, Alberta T5K2E8 Telephone (w) : (780) Fax : (780) robert.nonney@gov.ab.ca Attorney General of Alberta Ria Tzimas / Owen Young Ministry of the Attorney General Crown Law Office - Civil 8th Floor, 720 Bay Street Toronto, Ontario M5G 2K1 Tel: (416) Fax: (41 6) ria. tzimas@,iustice.gc.ca owen. young@,justice.gc.ca Attorney General of Ontario Christopher M. Rupar Attorney General of Canada Bank of Canada Building - East Tower 234 Wellington Street, Room KlAOH8 Telephone (w) : (6 13) Fax : (61 3) Christopher.Rupar@justice.gc.ca Agent for the Intervenor Attorney General of Canada Robert E. Houston, Q.C. Burke-Robertson 70 Gloucester Street K2POA2 Telephone (w) : (61 3) Fax : (61 3) Agent for the Intervenor Attorney General of British Columbia Henry S. Brown, Q.C. Gowling Lafleur Henderson LLP Elgin St P.O. Box 466, Stn "D" KlPlC3 Telephone (w) : (613) Fax : (613) henry.brown@,gowlings.com Agent for the Intervenor Attorney General of Alberta Robert E. Houston, Q.C. Burke-Robertson 70 Gloucester Street K2POA2 Telephone (w) : (6 1 3) Fax : (613) Agent for the Intervenor Attorney General of Ontario

5 Daniel R. Theriault 466 Bowlen Street Fredericton, New Brunswick E3A2T4 Telephone (w) : (506) Fax : (506) Union of New Brunswick Indians Dougald E. Brown Nelligan O'Brien Payne LLP Slater St KlPSH1 Telephone (w) : (6 13) Fax : (61 3) Agent for the Intewenor Union of New Brunswick Indians Thomas E. Hart McInnes Cooper 1601, Lower Water Street P.O. Box 730 Halifax, Nova Scotia B3J2V1 Telephone (w) : (902) Fax : (902) Forest Products Association of Nova Scotia ("FPANS") Patricia J. Wilson Osler, Hoskin & Harcourt O'Connor St K1 P6L2 Telephone (w) : (61 3) Fax : (613) pwilson@osler.com Agent for the Intewenor Forest Products Association of Nova Scotia (" FPANS") D. Bruce Clarke Burchell, Hayman, Parish 1801 Hollis Street, Suite 1800 Halifax, Nova Scotia B3J3N4 Telephone (w) : (902) Fax : (902) bclarke@burchells.ca Mi'gmawei Mawiomi Brian A. Crane, Q.C. Gowling Lafleur Henderson LLP Elgin St Box 466 Station D KIPlC3 Telephone (w) : (61 3) Fax : (613) Brian.Crane@,gowlings.com Agent for the Intervenor Mi'gmawei Mawiomi Bryan P. Schwartz Pitblado Main Street Winnipeg, Manitoba R3C4H6 Telephone (w) : (204) Fax : (204) bschwar@ms.umanitoba.ca Assembly of First Nations Dougald E. Brown Nelligan O'Brien Payne LLP Slater St KlP5H1 Telephone (w) : (6 13) Fax : (613) Agent for the Intewenor Assembly of First Nations

6 Mahmud Jamal Osler, Hoskin & Harcourt Box 50, 1 First Canadian Place Toronto, Ontario M5XlB8 Telephone (w) : (41 6) Fax : (4 16) New Brunswick Forest Products Association Dougald E. Brown Nelligan OtBrien Payne LLP Slater St KlP5Hl Telephone (w) : (61 3) Fax : (613) Counsel for the Intewenor Assembly of Nova Scotia Mi'kmaq Chiefs Louise Mandell, Q.C. Mandell Pinder Mainland Street Vancouver, British Columbia V6B2T4 Telephone (w) : (604) Fax : (604) louise@mandellpinder.com Okanagan Nation Alliance and Shuswap Nation Tribal Council Andrew K. Lokan Paliare, Roland, Rosenberg, Rothstein, LLP University Avenue Toronto, Ontario M5H3E5 Telephone (w) : (4 16) Fax : (4 1 6) andrew.lokan@paliareroland.com Congress of Aboriginal Peoples ("CAP") Patricia J. Wilson Osler, Hoskin & Harcourt O'Connor St KlP6L2 Telephone (w) : (61 3) Fax : (613) pwilson@osler.com Agent for the Intewenor New Brunswick Forest Products Association Agent for the Intervenor Assembly of Nova Scotia Mi'kmaq Chiefs Henry S. Brown, Q.C. Gowling Lafleur Henderson LLP Elgin St P.O. Box 466, Stn "DM KlPlC3 Telephone (w) :(613) Fax : (613) henry.brown@,~owlin~s.com - Agent for the Intervenor Okanagan Nation Alliance and Shuswap Nation Tribal Council Henry S. Brown, Q.C. Gowling Lafleur Henderson LLP Elgin St P.O. Box 466, Stn "D" KlPlC3 Telephone (w) : (61 3) Fax : (613) henry.brown~,nowlinas.com Agent for the Intervenor Congress of Aboriginal Peoples ("CAP")

7 INDEX PAGE PART I - STATEMENT OF FACTS PART I1 - STATEMENT OF QUESTIONS IN ISSUE PART I11 - ARGUMENT A. Introduction B. Definition of Aboriginal Rights C. "Communal" Nature of Aboriginal Rights D. Definition of the Treaty Rights E. Extinguishment of Right to Hawest Wood 1. Law on Extinguishment 2. Application of the Law to the Facts of Sappier and Gray F. "Submission to British Law" Argument PART IV - SUBMISSIONS ON COSTS PART V - ORDER SOUGHT PART VI - AUTHORITIES - Statutes - Cases - Secondary Materials

8 PART I - STATEMENT OF FACTS 1. The Intervenors, the Te'mexw Nations, are a group of Aboriginal nations situated on Southern Vancouver Island whose members are beneficiaries of a series of historic treaties entered into in the mid-1800s. These treaties are generally referred to as the Douglas Treaties. 2. The Te'mexw Nations adopt the facts set out by the Respondents in both appeals. PART II - STATEMENT OF QUESTIONS IN ISSUE 3. The Te'mexw Nations adopt the statement of the issues set out by the Appellant in both appeals. PART Ill - ARGUMENT A. Introduction 4. The Te'mexw Nations have a number of particular interests in this appeal. First, they are beneficiaries of a series of historic treaties that raise similar interpretative questions to those at issue in these cases. Second, they are currently negotiating comprehensive modem day treaties in the context of Traditional Territories that are highly urbanized and developed. They therefore have a strong interest in clarifying the law around both the survival and evolution of historic treaty rights as well as the meaning of treaty rights that do not correspond to any Aboriginal right. Third, they are faced with serious extinguishment or near-extinguishment claims in their Traditional Territories and are therefore concerned as to how that line of jurisprudence develops. 5. Ultimately, the Te'mexw Nations hope to see this Court adopt an approach to both historic and modern treaty-making that gives First Nations reason to believe that treaty-making is a worthwhile process. This requires knowing that treaty-making is not a

9 process of submission and assimilation that will gradually result in the loss of any meaningful ability to maintain and adapt their culture to a changing world. The Te'mexw Nations are concerned that the thrust of the Appellant's arguments will seriously undermine the value of historic treaties and cast doubt on the strength of modern day treaties. 6. First Nations should be able to trust that modern day treaty-making will allow them to continue to exist as distinctive communities within Canadian society even as that broader society's social, economic and political circumstances evolve over time. This necessitates avoiding narrow or technical approaches to Aboriginal or treaty rights which reduce or eliminate their practical value, and it requires giving these rights the flexibility required for their continued relevance. This approach to treaty-making means rejecting that Crown-Aboriginal treaties are merely a means of resolving transitory problems and understanding them as a crucial tool in fostering an enduring reconciliation of Aboriginal rights and interests with the interests of the broader Canadian society. B. Definition of Aboriginal Rights 7. New Brunswick argues that the New Brunswick Court of Appeal erred in defining the Aboriginal right as one to harvest trees for personal uses because that definition is overly broad (Appellant Gray Factum, para. 27 and Sappier Factum, para. 12). It is respectfully submitted that the Court of Appeal's definition should be upheld. 8. Recognizing a right to harvest wood for personal or domestic uses strikes an appropriate balance between two judicially-noted principles: the need for adequate specificity and the need for Aboriginal rights to "be interpreted flexibly so as to permit their evolution over time." R. v. Sparrow, [I 9901 I S.C.R at p Defining the tree harvesting rights of the Mi'kmaq and Maliseet as being distinct rights to harvest trees for shelter, to harvest trees to build boats, to harvest trees to make tools, and to harvest trees to make artwork would fail to capture the true role of

10 wood in their societies at the time of contact with the European settlers ("Contact") as established on the record of these appeals: timber was a ubiquitous and foundational natural resource, relevant to every practical facet of Mi'kmaq and Maliseet life, and the Mi'kmaq and Maliseet made use of this resource in their daily lives as they required it, in ways that evolved over time, both pre and post Contact. 10. This is the more accurate understanding of the Mi'kmaq and Maliseet's wood harvesting practices at the time of Contact. Furthermore, unlike New Brunswick's approach, it is "sensitive to the aboriginal perspective itself on the meaning of the rights at stake," a requirement enunciated by this Court in Sparrow in affirmed in more recent decisions. Sparrow, supra at p. 1112; see also R. v. Marshall; R. v. Bernard [2005] 2 S.C.R. 220 at para Although there are limits to the similarities between tree harvesting rights and hunting or fishing rights, an analogy can be drawn in this case to R. v. Powley. In Powley, the Ontario government argued that the Metis defendants needed to prove a right to hunt moose specifically, the species to which the charges at issue related. The Ontario Court of Appeal rejected that argument. Justice Sharpe observed that "[a] traditional aboriginal practice may involve what is, from the aboriginal perspective, a single identifiable activity that has a particular meaning or significance to the aboriginal community." He agreed with the trial judge's finding that the Metis were "opportunistic" when it came to hunting and that the right was therefore properly defined as a food hunting right. This Court upheld that reasoning. R. v. Powley, [2001] 2 C.N.L.R. 291 (O.C.A.) paras ; affd in [2003] 2 S.C.R. 207 at paras Similarly, before and after Contact, the Mi'kmaq and Maliseet engaged in the single practice of harvesting trees, and they used the wood opportunistically to meet a variety of personal needs. 13. Even if this Court agrees with New Brunswick that the Respondents' claimed Aboriginal right must be defined on a use-by-use basis, it is submitted that the main use

11 at issue here, harvesting for construction of a home, should be recognized as an Aboriginal right. 14. New Brunswick argues that even if the Respondents held an Aboriginal right to harvest wood for building shelter, s. 35 would not protect the Respondents' right to build a permanent home because their ancestors used wood only to make seasonal wigwams (Appellant Gray Factum, para. 79; Sappier Factum, paras ). New Brunswick's more general position is that the Respondents would only hold Aboriginal rights to use wood in ways that are distinct from modern, Western uses. The Appellant essentially argues that the purpose of s. 35 would be undermined by recognizing an Aboriginal right to build modern-day, permanent homes, because with this excessive evolution of the rights, "aboriginal societies would gradually lose...[ their] cultural distinctiveness" and "be replaced by nothing more than a constitutionally privileged minority" (Appellant's Gray Factum, para. 72). In fact, it is New Brunswick's approach that undermines s As a majority of this Court stated in R. v. Van der Peet, s. 35 fundamentally serves to recognize that Aboriginal people were here first, living as distinctive, independent societies: [Tlhe aboriginal rights recognized and affirmed by s. 35(1) are best understood as, first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies...(emphasis added) Justice McLachlin (as she then was), who dissented in Van der Peet, agreed that above all, Aboriginal rights exist because they predate the arrival of Europeans. She described "the recognition by the common law of the ancestral laws and customs the aboriginal peoples who occupied the land prior to European settlement" (emphasis added) as the "golden thread" in the common law's treatment of Aboriginal peoples. R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 43 per (then) Lamer (C.J.) and 263 (per McLachlin J.)

12 16. Indeed, as is noted in R. v. Sioui, the prior occupation and independence of Aboriginal societies was recognized by the Crown and informed Crown policy even at the time of colonization. R. v. Sioui, [I S.C.R at paras. 69,74 and Section 35 therefore stands in sharp contrast to previous, assimilationist policies (as embodied in the residential school system and the prohibition on potlatches). It is instead a tool to help Canada's distinctive Aboriginal cultures and societies survive and, hopefully, thrive, based on the recognition that their prior existence on what is now Canadian soil entitles their members to continue to exist as distinctive societies. Powley (SCC), supra at para Not only does the "frozen rights" approach advocated by New Brunswick in this appeal deny protection to the relevant, modern day, Mi'kmaq and Maliseet tree harvesting right, but it also implies that Aboriginal societies are only distinctive insofar as they live as they did prior to contact with the Europeans. 19. Quebec's submissions on this point are similarly problematic. Like New Brunswick's, they display the "frozen rights" approach and, moreover, they are founded on an even more minute dissection of the Mi'kmaq and Maliseet cultures: Quebec argues that the Respondents cannot have an Aboriginal right to build houses because their modern houses are Western in style, comprise several rooms, and facilitate individual or family rather than communal living (paras of their Factum). 20. Ultimately, New Brunswick and Quebec purport to speak definitively on what is truly "Indian" and what is not. Their positions embrace a grossly reductionist view of culture, and teeter dangerously close to the abyss of racism. While it is true that Canadian courts have incorporated the concept of "lndianness" into various aspects of Aboriginal law - for example, in division of powers analysis and in analyzing whether property is situated "on reserve" for the purposes of s. 87 of the Indian Act - it is submitted that non-aboriginal Canadians must always be cautious in applying that label.

13 21. There is an inherent risk of error in trying to reduce culture, which is largely intangible, to concrete characteristics, and this risk augments when assessing a culture other than one's own. Indeed, the Supreme Court of Canada recognized this fact in Mitchell v. Canada (M. N. R.): Determining what practices existed, and distinguishing central, defining features of a culture from traits that are marginal or peripheral, is no easy task at a remove of 400 years. Cultural identity is a subiective matter and not easily discerned: see R. L. Barsh and J. Y. Hen+ derson, "The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand" (1997), 42 McGill L.J. 993, at p. 1000, and J. Woodward, Native Law (loose-leaf), at p Also see Sparrow, supra, at p ; Delgamuukw, supra, at paras , and J. Borrows, "The Trickster: Integral to a Distinctive Culture" (1 997), 8 Constitutional Forum 27. (emphasis added) Mitchell, [2001] 1 S.C.R. 911 at para. 32 (there was no disagreement on this point in the concurring reasons of Justice Binnie) 22. In the case at bar, it is absurd to argue, as Quebec does, that harvesting wood to build homes cannot be an Aboriginal right simply because Aboriginal people now build homes with a larger number of rooms. It is also simplistic to maintain that people no longer live "communally" simply because nuclear families may each have a separate home, as this ignores the fact that a significant number of Aboriginal people live within their own communities, on reservations or other Crown lands, and that extended families remain a vital unit in many Aboriginal communities for child-rearing, pursuing traditional activities and imparting traditional knowledge, and as a general support network. For the importance of extended family and the overlap between family and community, see the Royal Commission on Aboriginal Peoples (hereinafter "RCAP"), Vol. 3 (Ottawa: Minister of Supply and Services, 1996) at pp and More generally, New Brunswick and Quebec's arguments completely overlook the reality, obvious to anyone who has spent some time in an Aboriginal community, that to this day, regardless of the extent to which First Nation communities have adopted Western products, occupations and lifestyle elements, they retain distinctive collective identities. Aboriginal rights should be interpreted in a way that recognizes this

14 fact, in a way that gives Aboriginal cultures room to breathe and evolve and adapt as every human culture requires. 24. To avoid diminishing Aboriginal peoples as humans, the law should recognize that like all other human societies, Aboriginal societies have always been dynamic and adaptable. If s. 35 only protects the practices, traditions and customs deemed worthy of protection through a purely Western lens, and if it only protects those practices, traditions and customs in their pre-contact form (e.g. protection of the right to build a wigwam), this Constitutional provision will necessarily fail to offer meaningful protection to Aboriginal cultures and societies in the modern day. The Royal Commission on Aboriginal Peoples makes a similar point in its discussion of Aboriginal title. The Royal Commission noted that "societies and cultures evolve and transform over time," and that "[gliven the dramatic transformations that accompanied contact, settlement and colonization, this acknowledgement is especially critical if the law of Aboriginal title is to reflect respect for Aboriginal relationships with lands and resources." An analysis that is overly weighted towards the pre-contact period defeats the reconciliatory purpose of s. 35, which necessarily relates to adapting both Aboriginal and non-aboriginal ways to the reality of Contact. RCAP, Vol. 2 (Ottawa: Minister of Supply and Services, 1996) at p Quebec's argument that cultural protection is properly selective and its example of its Loi sur les bien culturels (paras ) only drives home the vulnerability of Aboriginal groups. It emphasizes that Quebec essentially has plenary authority to take legal measures to protect and foster what it defines at any given time as its distinctive culture. Aboriginal societies lack that power, and legal protections for their culture and cultural survival depend on the laws and judicial decisions of Canadian and provincial governments and courts. This legal authority must be exercised with an understanding Aboriginal groups' perspective of their own culture, and s. 35 of the Constitution Act, a crucial legal protection, must be applied in a way that acknowledges and facilitates the right of Aboriginal cultures to survive and flourish.

15 26. Practical considerations also militate in favour of recognizing the right of the Respondents to harvest timber for personal uses, including for the construction of permanent homes. First, like Aboriginal rights to hunt or fish for domestic purposes, a domestic use timber harvesting right is inherently limited in scope. Unlike a commercial harvesting right, it does not give any cause for any prima facie concern about overharvesting. 27. Quebec is grasping at straws when it argues that the timber harvesting right would be limitless because Aboriginal right-holders could build homes of any size, and that such a right would therefore differ from Aboriginal rights to hunt or fish for food (paras ). Only so much wood could be put to personal use even if Indian reserves were suddenly to become dominated by mansions. A second limit to the right results from the fact that the Crown has the authority to infringe and so limit the exercise of Aboriginal rights if it does so in a justifiable manner. Quebec's example of the Aboriginal right to fish for food offers a perfect example, since conservation measures have been upheld as justifiable infringements of that right in various cases. 28. It should also be remembered that the justification analysis is specific to the Aboriginal right at issue and the facts of each case: R. v. Gladstone, at para. 56. Thus, for example, whereas this Court stated in Sparrow that an Aboriginal food fishing right should be satisfied before any commercial or sports fishing could take place (at p. 1116), the Court also stated in Gladstone that a notion of exclusive priority for a particular resource might be inappropriate if the internal limitations on the Aboriginal right are inadequate: Gladstone at para. 66. Therefore, there might be situations in the context of an Aboriginal right to harvest timber for personal uses where it would be appropriate not to grant the Aboriginal harvesting right exclusive priority over all other harvests. Sparrow, supra at p. 1116; R. v. Gladstone [I99612 S.C.R. 723 at paras. 56 and Avoiding an overly narrow focus in defining Aboriginal rights is also consistent with the reality that Aboriginal rights are exercised in the present by persons unschooled

16 in law or history, at a great remove from pre-contact times. In order for persons who live in Aboriginal societies that have adapted to the reality of Contact to have any real ability to exercise their rights, they must be able to ascertain their rights with reasonable accuracy and decide how to govern their affairs. Defining rights with a reasonable degree of generality and flexibility, subject to certain clear restrictions - such as personal use - furthers this practical objective. 30. This approach is also consistent other principles that inform Canadian law more generally. For instance, the rule of law itself is premised on the idea that citizens and residents of a country are entitle to a "stable, predictable and orderly society in which to conduct their affairs." Similarly, the Court has also held that laws that are so vague that a person cannot ascertain how to conduct themselves are unenforceable. How can an approach to the use of wood which leaves an Aboriginal person asking if a one-room bungalow is acceptable because it is small enough satisfy these principles? Such an approach will inevitably lead to the very problem Justice Lebel identified in Bernard and Marshall: the definition of Aborginal rights in summary conviction proceedings, which are procedurally inadequate for the task and which provide a piece-meal resolution of Aboriginal rights claims. Reference re: Secession of Quebec, [I S.C.R. 217 at para. 70; R. v. Canadian Pacific, [I S.C.R at para. 47; Bernard and Marshall, supra at paras Finally, allowing for treaty rights to evolve is consistent with the ultimate objective of reconciling Crown sovereignty with the pre-existence of Aboriginal societies, which this Court first identified in Van der Peet as the fundamental purpose of s. 35. If Aboriginal groups can adapt their traditional cultures to modern-day circumstances, they will be better able to maintain their distinctive societies and ensure that these societies survive developments on their traditional territories that might otherwise render their rights hollow from a practical perspective. Van der Peet, supra at para. 31 (per Lamer C.J.C.) 32. For example, by recognizing the right of Aboriginal hunters to use firearms and motorized vehicles in the exercise of their Aboriginal hunting rights, the courts have

17 allowed Aboriginal groups to make use of those rights in situations where their immediate geographic area is no longer available for hunting due to urbanization and development. Similarly, recognizing the right of Aboriginal groups to harvest timber to construct modern day homes acknowledges that the traditional nomadic or seminomadic lifestyle which most of these groups led in the past is no longer available in light of the extensive economic activities and settlement on their traditional territories. It thereby ensures that the Aboriginal right has modem day meaning and value notwithstanding the serious changes to the landscape brought about by European settlement. 33. Again, on this point, it is appropriate to refer to Quebec's submissions. One of its arguments is that the Mi'kmaq and Maliseet no longer have an Aboriginal right to harvest wood for shelter because they began living on Indian reserves and abandoned wigwams and their semi-nomadic lifestyle (para. 71 of Factum). Denying the existence of an Aboriginal right in the modern day because the Crown unilaterally altered Aboriginal peoples' way of life by taking up their traditional territories and settling them on Indian reserves would be the antithesis of reconciling Crown sovereignty with the pre-existence of Aboriginal societies. C. "Communal" Nature of Aboriginal Rights 34. British Columbia argues that defining the Aboriginal right at issue as a "personal use" timber harvesting right "is a contradiction in terms." It asserts that "communal authorization or consent for the personal enjoyment of the collective right" is required (British Columbia Factum, para. 32). 35. With respect, this submission misstates the "communal" aspect of Aboriginal rights. Aboriginal rights are communa 11 in that they are held by an Aboriginal group and enjoyed by virtue of membership in the Aboriginal group. That is, they are rights exercised by Aboriginal people in c :ommon with other members of their Aboriginal group. This does not mean that individuals cannot decide independently to exercise the Aboriginal right, or that they cannot do so to meet their individual needs.

18 36. No case has ever suggested that the game killed by an Aboriginal hunter or furs obtained by an Aboriginal trapper belong to the community by virtue of being "communal" property. Nor can it be assumed that members of an Aboriginal group necessarily had to seek or obtain consent from the community to exercise a harvesting right in a particular place or to keep the fruits of their labour. Some First Nations may have such customary laws, others may not. Each case has to be examined on it own facts if this matter is at issue. 37. At the same time, the fact that Aboriginal rights may traditionally be exercised independently by members does not preclude the provincial and federal governments from reaching modern-day agreements that modify how and where Aboriginal rights will be exercised, or that give an Aboriginal government more control over the exercise of Aboriginal rights by its members than it traditionally had (which is what appears to be British Columbia's underlying concern, as evidenced by para. 33 of its Factum). Aboriginal groups, through their authorized leaders or representatives, may reach agreements that bind their membership on matters such as the total allowable fish harvest, the total allowable timber harvest, or the geographical areas where they will exercise a hunting right. 38. Indeed, negotiating terms for the modern-day exercise of Aboriginal rights is a critical aspect of the comprehensive British Columbia Treaty Process in which several British Columbia First Nations, including the Te'mexw Nations, are currently engaged. Furthermore, numerous accommodation agreements for particular matters, such as salmon-fishing or forestry operations, have been entered into by First Nations and the Crown in recent years. Therefore, as a practical matter there is no doubt that Aboriginal rights may be subject to modern day agreements with the Crown as part of the reconciliation process.

19 D. Definition of the Treaty Rights 39. The tenor of New Brunswick and Canada's submissions is that the treaty rights enjoyed by the Mi'kmaq and Maliseet must also reflect traditional activities. On this point, it is important to remember that while a treaty right may mirror an Aboriginal right (as was the case with the hunting right at issue in R. v. Simon), Aboriginal and treaty rights are distinct, as was confirmed by this Court in R. v. Badger: There is no doubt that aboriginal and treaty rights differ in both origin and structure. Aboriginal rights flow from the customs and traditions of the native peoples. To paraphrase the words of Judson J. in Calder, supra, at p. 328, they embody the right of native people to continue living as their forefathers lived. Treaty rights, on the other hand, are those contained in official agreements between the Crown and the native peoples. Treaties are analogous to contracts, albeit of a very solemn and special, public nature. They create enforceable obligations based on the mutual consent of the parties. It follows that the scope of treaty rights will be determined by their wording, which must be interpreted in accordance with the principles enunciated by this Court. R. v. Badger, [I S.C.R. 771 at para. 76; R. v. Simon, [I S.C.R. 387 at pp This Court re-affirmed the distinct origins of Aboriginal and treaty rights in R. v. Marshall. Therefore, in interpreting the Respondents' Treaty rights, it would be inappropriate to restrict those rights simply on the basis that the activity in question was not a "pre-contact" activity, for that test should only apply to Aboriginal rights. This may be particularly important in the context of commercial or economic rights. For example, the trapping rights guaranteed by the numbered treaties clearly contemplated the commercial trade in furs that had developed with the Hudson's Bay Company and that had become a mainstay of the Aboriginal economies by the time treaties were signed. R. v. Marshall, [I99913 S.C.R. 456 at para. 47 E. Extinguishment of Right to Harvest Wood 1. Law on Extinguishment 41. New Brunswick argues in both Sappier and Gray that any Aboriginal or treaty right to harvest wood has been extinguished by New Brunswick's pre-confederation prohibitions on the removal of timber from Crown lands (Gray Factum, paras ; Sappier Factum, paras ). New Brunswick's position is supported by Nova

20 Scotia (Nova Scotia Factum, para. 41). With respect, acceptance of this argument would significantly lower the bar for proving extinguishment and could have serious consequences for Aboriginal rights across Canada. 42. Canadian courts have consistently and without hesitation imposed on the Crown a high standard for proving the extinguishment of Aboriginal or treaty rights. This exacting standard is entirely appropriate given the obvious unfairness in the Crown unilaterally depriving Aboriginal groups of fundamental rights. It should be noted that this unfairness is exacerbated in the case of treaty rights, which were negotiated by the parties and obtained in exchange for consideration (such as the surrender of territory). 43. As this Court has stated in Sparrow and numerous other decisions, the evidence must demonstrate a "clear and plain intention" to extinguish, and the onus is on the Crown to prove extinguishment. As (then) Chief Justice Lamer stated in R. v. Van der Peet, the fact that legislation is "necessarily inconsistent with the continued enjoyment of aboriginal rights is not sufficient to meet the test." Sparrow, supra at p. 1099; Van der Peet, supra at para A related principle is that the regulation of an activity by government must be distinguished from the extinguishment of the right, as was noted by this Court in Sparrow, where the Crown had argued that the "progressive restriction and detailed regulation of the fisheries...had the effect of extinguishing any aboriginal right to fish." The Court rejected that view: "At bottom, the respondent's argument confuses regulation with extinguishment. That the right is controlled in great detail by the regulations does not mean that the right is thereby extinguished." Sparrow, supra at p Furthermore, Lamer C.J. (as he then was) indicated in Delgamuukw v. British Columbia that at a minimum, any laws purporting to extinguish Aboriginal rights or title would need to be "laws in relation to Indians and Indian lands," i.e. laws that expressly regulate Aboriginal peoples or their lands. Delgamuukw v. British Columbia, [I S.C.R at para. 180

21 46. New Brunswick argues that extinguishment can be achieved implicitly by legislation, citing Gladstone and Osoyoos Indian Band v. Oliver (Town) in support of this proposition. A majority of this Court, relying on a passage from its earlier Gladstone decision, did state in Osoyoos that "the Crown does not necessarily have to use language which refers expressly to its extinguishment of aboriginal rights" (emphasis added). It is respectfully submitted that this simply means that a legislature may not need to state expressly that it is extinguishing Aboriginal rights. Osoyoos lndian Band v. Oliver (Town), [2001] 3 S.C.R. 746 at para It is submitted that this Court's pronouncements on extinguishment do require that the legislation be express in taking away an Aboriginal right in order to extinguish that right. Thus, while Osoyoos indicates that the wording of such legislation may not need to be so explicit (and the words "not necessarily" from the above passage imply that this will depend on the case), its intention must be unmistakable. This accords with (then) Justice McLachlinls comments in her Van der Peet dissent (which were consistent with the majority judgment on this point): For legislation or regulation to extinguish an aboriginal right, the intention to extinguish must be "clear and plain": Sparrow, supra, at p The Canadian test for extinguishment of aboriginal rights borrows from the American test, enunciated in United States v. Dion, 476 U.S. 734 (1986), at pp : "[wlhat is essential [to satisfy the "clear and plain" test] is clear evidence that [the government] actually considered the conflict between its intended action on the one hand and lndian treatv rights on the other, and chose to resolve that conflict by abrogating the treatv" or right. (emphasis added) In other words, the Court must be satisfied that the legislature knowingly and intentionally extinguished all or part of the Aboriginal treaty right. It is respectfully submitted that this can only be done if the Crown not only grants rights to non- Aboriginal peoples, but also expressly takes the corresponding right away from the Aboriginal rights-holders. The onus is on the Crown to establish that this occurred. Van der Peet, supra at para The Ontario Court of Appeal endorsed this passage in Chippewas of Samia Band v. Canada (Attorney General) et. al. (2000) 51 O.R. (3d) 641 at para Although the extinguishment test is very difficult to satisfy, it does not create an impossible threshold, as exemplified by s. 12 of the Natural Resources Transfer

22 Agreement, which this Court has held explicitly modified the Treaty 8 hunting, trapping and fishing rights and eliminated the commercial component of those rights: R. v. Badger. Therefore, in rare cases, extinguishment can be demonstrated. R. v. Badger [I99611 S.C.R Application of the Law to the Facts of Sappier and Gray 49. Properly applied, the test for extinguishment is not met on the facts of these appeals. In both Sappier and Gray, New Brunswick bases its extinguishment argument on five pre-confederation statutes that restricted access to timber on Crown lands. However, these statutes simply establish a licensing scheme and are instances of governmental regulation that fall short of extinguishing the underlying Aboriginal tree harvesting right. 50. In this regard, it is worth observing that imposing a requirement of a licence to exercise a right does not necessarily even infringe a s. 35 right. As this Court held in Nikal, such a regime can allow the Crown to coordinate competing interests and rights, and the question of infringement will depend upon how that regime is administered. Thus, without evidence required as to how this regime was administered vis-a-vis Indians legislative (e.g. was the licencing requirement enforced against Aboriginal people? Were they granted licences?), it is very difficult to judge the true intention insofar as Aboriginal or treaty timber harvesting rights were concerned. 51. The Crown has adduced no evidence that the Mi'kmaq or Maliseet were prohibited from obtaining licences to harvest wood under the pre-confederation licensing scheme. The availability of fishing licences to Aboriginal peoples was noted by a majority of this Court in Gladstone as evidence that the regulatory scheme did not intend to deny Aboriginal people all access to fish, their central natural resource. Indeed, it is difficult to imagine that the Crown would have intended for Aboriginal groups in New Brunswick to stop relying on timber for various domestic purposes, since at the time, the resource was essential to survival, as all parties acknowledge. Gladstone, supra at para. 37

23 52. Characterizing the statutes or "penal" so as to distinguish from those at issue in Sparrow and Gladstone (New Brunswick Gray Factum, para. 106) does nothing to advance the case for extinguishment. All regulatory regimes prohibit some activities and provide mechanisms for regulating activities. Most such statutes include penal consequences for persons who refuse to comply with the strictures of the regime. Focusing on the penal consequences of non-compliance distracts from the proper focus of the extinguishment inquiry, namely whether the legislation reveals clear and plain intention to extinguish s. 35 rights. 53. Aside from the fact that the Appellant's extinguishment argument is not supported by the jurisprudence, New Brunswick's position runs counter to the concept of reconciliation, in that it seeks to trump Aboriginal rights with the competing interests of the Crown. Where an Aboriginal harvesting right exists, reconciliation entails recognition of that right while allowing the Crown to maintain general control of the resource, including the right to limit the Aboriginal harvesting right in justifiable circumstances. F. "Submission to British Law" Argument 54. In addition to its explicit extinguishment argument, New Brunswick argues in Sappier that the Treaty of 1726 could not have protected a right to harvest trees because, under that Treaty, the Aboriginal signatories fully submitted to British law, and that law included numerous prohibitions on the harvesting of trees (New Brunswick Sappier Factum, paras. 101 to 119). Nova Scotia supports this claim, which it distinguishes from the extinguishment argument (Nova Scotia Factum, para. 39). 55. The Te'mexw Nations submit that this approach to treaty-making begs the question. British law as applied in the colonies recognized that modifications to the common law and statutes would have to be made in order to accommodate local realities. One of the most important of these local realities was the presence of indigenous people who lived according to their own laws and ways and who depended

24 entirely on the natural resources of what had been their exclusive lands. British law recognized that those societies would continue to have their own distinct legal and political regimes which would be reconciled with settlement and British governance over time. This concept is embedded in the doctrine governing the reception of laws in the colonies. 56. It is well established under the doctrine of reception of laws that British colonies only "received" British laws to the extent that they were appropriate in light of the "local circumstances." Even Blackstone's Commentaries on the Laws of England noted that the principle of reception must be "understood with very great restrictions," and that "[s]uch colonists carry with them only so much of the English law as is applicable to the condition of the infant Colony." Columbia's Law and Equity Act, R.S.B.C., 1996 c This principle continues today in s. 2 of British Blackstone, Commentaries on the Laws of England (Oxford, 1756) 11 at pp ; Young v. Blaikie (1 822), 1 Nfld. L.R. 277 at 283 (S.C.); The English Law Ordinance, 1867, S.B.C. 1867, c.7; Uniacke v. Dickson (1 848), 2 N.S.R. 287 (S.C.); Law and Equity Act, R.S.B.C., 1996, c. 253, s Blackstone describes the reception of laws principle as excluding truly local English laws, but Canadian courts have gone even further, holding it to modify, limit or exclude even fundamental principles of English law. For example, as was recently affirmed by this Court, the English property law principle that a riparian owner owns the bed of an adjacent watercourse to the middle of the bed is inapplicable to Western Canada, where settlement and commerce were so dependent upon transport by water (R. v. Nikal). Similarly, because the strict application of English marriage rules would have worked an injustice in the early relations between settlers and the Aboriginal people, their application was restricted to allow for the recognition of marriages carried out in accordance with Aboriginal custom (Connolly v. Woolrich). Even in modern times the continuation of Aboriginal customary adoption laws is recognized in the determining of the modern definition of the family: Casimel v. Insurance Corporation of British Columbia. R. v. Nikal, [1996] 1 S.C.R at para. 67; Connolly v. Woolrich (1867), Lower Canada Jurist 11; Casimel v. Insurance Corporation of British Columbia, (1993) 82 B.C.L.R. (2d) 387 (C.A.)

25 58. Connolly in particular recognizes that Canada was a country which Aboriginal societies occupied first, with pre-existing rights. Therefore, even if the Treaty of 1726 did entail acceptance of British law by the Aboriginal signatories, this does not mean that any laws that would have interfered with or prohibited their traditional harvesting activities, such as timber harvesting. The Treaty could well have been intended to protect traditional harvesting rights even in the face of such laws. 59. Moreover, it seems unlikely that even the Crown signatories to the Treaty of 1726 would have failed to protect the right of the Aboriginal signatories to harvest the resources necessary for their sustenance. This Court has recognized in a few cases that one of the purposes of the historic Crown-Aboriginal treaties was to ensure that the Aboriginal signatories retained their ability to sustain themselves and thereby remain economically self-sufficient. Indeed, this Court made that finding with respect to the Mi'kmaq's Treaty of Peace and Friendship of 1760 in R. v. Marshall: "The British certainly did not want the Mi'kmaq to become an unnecessary drain on the public purse of the colony of Nova Scotia or of the Imperial purse in London." It is difficult to understand why that objective would not have also been at play when the earlier Treaty of 1726 was signed. Marshall, supra at para. 25; See also Jack et. al. v. The Queen, [I9801 I S.C.R. 294 at p ; R. v. Horseman, [I9901 I S.C.R. 901 at p In summary, it is highly doubtful that any general Mi'kmaq or Maliseet submission to British laws under the Treaty of 1726 was intended to or actually did subject them to British laws that would have interfered with or prohibited their traditional harvesting activities.