+,S / IN THE SUPREME COURT OF CANADA

Transcription

1 - R5/ al No ,S / IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR THE PROVINCE OF ONTARIO) - BETWEEN: - THE BEAR ISLAND FOUNDATION and GARY POTTS, WILLIAM TWAIN and MAURICE McKENZIE, JR. ON BEHALF OF THEMSELVES AND ON BEHALF OF ALL OTHER MEMBERS OF THE TEME-AUGAMA ANISHNABAY AND TEMAGAMI BAND OF INDIANS APPELLANTS (Defendants) AND: THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARTO RESPONDENT (Plaintiff) AND: THE ATTORNEY GENERAL FOR CANADA THEATTORNEYGENERALFORQUEBEC THE ATTORNEY GENERAL FOR BRITISH COLUMBIA THE ATTORNEY GENERAL FOR ALBERTA THE A'ITORNEY GENERAL FOR SASKATCHEWAN THE ATTORNEY GENERAL FOR NEWFOUNDLAND UNION OF ONTARIO INDIANS ASSOCIATION OF IROQUOIS AND ALLIED INDIANS MOCREEBEC AND RANDY KAPASHESIT NATIONAL INDIAN BROTHERHOODIASSEMBLY OF FIRST NATIONS INTERVENORS FACTUM OF THE INTERVENOR NATIONAL INDIAN BROTHERHOODIASSEMBLY OF FIRST NATIONS -. Me Peter W. Hutchins GOWLING, STRATHY & HENDERSON HUTCHINS, SOROKA & DIONNE 160 Elgin Street, Suite St-Jacques, Suite 400 Ottawa, Ontario - Montreal, Quebec. KlN 8S3 H2Y 1M6 Tel. : (514) Tel.: (613) FAX: (514) FAX: (613) Counsel for Intervenor NIBIAFN Agent for Intervenor NIBIAFN

2 W. Ross Murray, Q.C. Wendy J. Earle BORDEN & ELLIOT Scotia Plaza 40 King Street West Toronto, Ontario M5H 3Y4 Counsel for the Appellants J.T.S. McCabe, Q.C. Ministry of the Attorney General Crown Law Office - Civil 8th Floor 720 Bay Street Toronto, Ontario MSG 2K1 Counsel for Respondent GOWLING, STRATHY & HENDERSON 160 Elgin Street, Suite 2600 Ottawa, Ontario KIN 8S3 Agent for Appellants SOLOWAY, WRIGHT, HOUSTON GREENBERG, MORIN Barristers and Solicitors 99 Metcalfe Street Ottawa, Ontario KIP 6L7 Agent for Respondent W. Ian Binnie, Q.C. McCARTHY TETRAULT Suite 4700 Toronto Dominion Bank Tower Toronto Dominion Centre Toronto, Ontario M5K 1E6 Counsel for Attorney General for Canada William B. Henderson BLANEY, McMURTRY, STAPELLS The Cadillac Fairview Tower Suite Queen Street West Toronto, Ontario M5H 2V3 Counsel for Union of Ontario Indians Brian A. Crane, Q.C. GOWLING, STRATHY & HENDERSON Suite Elgin Street Ottawa, Ontario KIN 8S3 Counsel for Association of Iroquois and Allied Indians

3 Murray Klippenstein Gary Stein ILER, CAMPBELL & ASSOCIATES 150 Simcoe Street Toronto, Ontario M5H 3G4 Counsel for Mocreebec and Randy Kapashesit Me Renk Morin MINISTERE DE LA JUSTICE 1200 Route de 1'Eglise Sainte-Foy, Quebec G1V 4M1 Counsel for Attorney General of Quebec D.M.M. Goldie, Q.C. N. J. Prelypchan RUSSELL & DUMOULIN West Georgia Street Vancouver, B. C. V6E 3G2 Counsel for Attorney General for British Columbia Robert J. Normey Constitutional and Energy Law Street Edmonton, Alberta T5K 2E8 Counsel for Attorney General for Alberta THEATTORNEYGENERALFOR SASKATCHEWAN KARAM, GREENSPOON 180 MacLaren Street Suite Ottawa, Ontario K2P OL3 Agent for Mocreebec and Randy Kapashesit NOEL, BERTHIAUME, AUBRY 1 1 1, rue Champlain Hull, Quebec J8X 3R1 Agent for A.G. Quebec BURKE-ROBERTSON Barristers and Solicitors 70 Gloucester Street Ottawa, Ontario K2P OA5 Agent for A.G.B.C. GOWLING, STRATHY & HENDERSON 160 Elgin Street, Suite 2600 Ottawa, Ontario KlN 8S3 Agent for A.G. Alta. GOWLING, STRATHY & HENDERSON 160 Elgin Street, Suite 2600 Ottawa, Ontario KIN 8S3 Agent for A.G. Sask. THEATTORNEYGENERALFOR NEWFOUNDLAND BURKE-ROBERTSON Barristers and Solicitors 70 Gloucester Street Ottawa, Ontario K2P OA5 Agent for A.G. Nfld.

4 No IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR THE PROVINCE OF ONTARIO) BETWEEN: AND: AND: THE BEAR ISLAND FOUNDATION and GARY POTTS, WILLIAM TWAIN and MAURICE McKENZIE, JR. ON BEHALF OF THEMSELVES AND ON BEHALF OF ALL OTHER MEMBERS OF THE TEME-AUGAMA ANISHNABAY AND TEMAGAMI BAND OF INDIANS THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO APPELLANTS (Defendants) RESPONDENT (Plaintiff) THE ATTORNEY GENERAL FOR CANADA THEATTORNEYGENERALFORQUEBEC THE ATTORNEY GENERAL FOR BRITISH COLUMBIA THE ATTORNEY GENERAL FOR ALBERTA THE ATTORNEY GENERAL FOR SASKATCHEWAN THE ATTORNEY GENERAL FOR NEWFOUNDLAND UNION OF ONTARIO INDIANS ASSOCIATION OF IROQUOIS AND ALLIED INDIANS MOCREEBEC AND RANDY KAPASHESIT NATIONAL INDIAN BROTHERHOODIASSEMBLY OF FIRST NATIONS INTERVENORS FACTUM OF THE INTERVENOR NATIONAL INDIAN BROTHERHOODIASSEMBLY OF FIRST NATIONS Me Peter W. Hutchins HUTCHINS, SOROKA & DIONNE 245 St-Jacques, Suite 400 Montreal, Quebec H2Y 1M6 Tel. : (5 14) FAX: (514) Counsel for Intervenor NIBIAFN GOWLING, STRATHY & HENDERSON 160 Elgin Street, Suite 2600 Ottawa, Ontario KIN 8S3 Tel.: (613) FAX: (613) Agent for Intervenor NIBIAFN

5 TABLE OF CONTENTS PART I PART I1 STATEMENT OF FACTS POSITION OF NIBIAFN ON POINTS IN ISSUE A. Appellants Enjoy Existing Aboriginal Rights B. No Relinquishment of Appellants' Rights Has Been Established C. No Extinguishment of Appellants' Rights Has Been Established D. A Treaty Process Should Be Established PART 111 ARGUMENT A. The Facts in Context and the Law Restated B. Aboriginal Title and the Royal Proclamation of 1763 C. The Royal Proclamation Applies in the Land Claim Area D. Constraints on the Sovereign - The Historical Context E. External Constraints on the Sovereign - Law of Nations F. Internal Constraints of the Sovereign G. Constraints Apply to "Course of Conduct" H. The Temagami as a "Nation or Tribe" I. Due Process requirements and the Robinson- Huron Treaty J. No Extinguishment by Legislation or Executive Act K. Frustration of Exercise not an Abrogation of a Right

6 (ii) L. Provincial Statutes not Incorporated into Federal Law i) Dick v. The Oueen ii) Section 88 Cannot Authorize Legislative Interdelegation M. Appropriate Remedy PART IV PART V ORDER SOUGHT TABLE OF AUTHORITIES SUGGESTED REMEDY APPENDIX TO FACTUM TAB A (with factum) TABS 1-15

7 1. FACTUM NIBIAFN PART I THE FACTS PART 11 POINTS IN ISSUE PART I - STATEMENT OF FACTS 1. For the purpose of this appeal, Intervenor National Indian BrotherhoodlAssembly of First 10 Nations (hereinafter "NIBIAFN"), accepts the facts as presented in Appellants' Factum. PART I1 - POSITION OF NIBIAFN ON POINTS, IN ISSUE A. APPELLANTS ENJOY EXISTING ABORIGINAL RIGHTS Appellants were and continue to be a distinct "Tribe" or "Nation" within the meaning of the Royal Proclamation of 1763 ("the Proclamation"), enjoying existing aboriginal rights. B. NO RELINOUISHMENT OF APPELLANTS' RIGHTS HAS BEEN ESTABLISHED Given the dense factual record in this case relinquishment by Appellants of their rights is not clearly established and must not be presumed. The characterization by Respondent of the Robinson-Huron Treaty process and subsequent conduct of the parties violates due process requirements inherent in the CanadaIFirst Nations treaty process. 'An intention and consent to be bound are fundamental requirements of a treaty relationship. Canada did not consent to or acknowledge a treaty relationship with the Temagami Nation until this case came to trial. C. NO EXTINGUISHMENT OF APPELLANTS' RIGHTS HAS BEEN ESTABLISHED The issue in this case is not when and how the Sovereign unilaterally extinguished Appellants' rights, but rather whether the Sovereign could extinguish those rights. The law when clearly and comprehensively stated provides a negative answer. The Constitutional Question must accordingly be answered in the negative. D. A TREATY PROCESS SHOULD BE ESTABLISHED 5. To ensure that justice is 'done and to avoid uncertainty, this Court should fashion a remedy allowing Appellants, Canada and Respondent to establish appropriate treaty relations.

8 2. FACTUM NIBIAFN PART I11 ARGUMENT PART I11 - ARGUMENT A. THE FACTS IN CONTEXT AND THE LAW RESTATED NIBIAFN submits that the essential issues in this case are being obscured by the enormous historical record. 7. There is a difference between a finding of specific fact and a finding of fact which is really an inference from facts specifically found, between the perce~tion and evaluation of facts. Union Marine Gen'l Ins. Co. v. Bodnorchedk [I9581 S.C.R. 399 at 413; Dziwenka v. 20 The Oueen (1970) 16 D.L.R. 190 (Alta C.A.), adopting Benmax v. Austin Motor Co. [I All E.R. 326 at 327 (H.L.) It is not necessary to find palpable error in the findings of fact by the trial judge supported or not (and many were not) by concurrent findings of the Ontario Court of Appeal. It is sufficient for this Court to find the burden of proof clearly resting on the shoulders of Respondents was not met and that, in any event, the learned trial judge applied inappropriate legal tests to his findings of fact. Reasons of the Court of Appeal, Case at 786; Dziwenka, sudra at Given the dense historical record in this case, the very least that one may assert is that relinquishment of their rights by Appellants' is not clearly established. 10. This Court faced with such a record should apply the principles of equity and adjudicate 4 0 the matter in such a way as to avoid a definitive or irreparable loss of rights by one of the parties. This surely is what the courts of Canada and the United States have meant when asserting time and time again that extinguishment is not lightly to be implied. U.S. v. SantaFe U.S. 339 (1941) at 354. Approved in Simon v. The Oueen [I S.C.R. 387 at Respondent and Intervenors in support place before this Court a theory of "extinguishment by supposition. " e.g. The band that Tagawinini represented at the Treaty... must have been the Temagami Band of Nebangonai" (Respondent par. 54) [emphasis added].

9 3. FACTUM NIBIAFN PART I11 ARGUMENT If the effect of cumulative legislative and executive acts since 1850 suggested by Respondent, Canada and other Intervenors in support is accepted, not only would there be no existing aboriginal rights in Ontario, there would be no existing aboriginal rights in Canada. The recognition and affirmation of existing aboriginal rights in s. 35 of the Constitution Act would not only be rendered nugatory but.would constitute a cruel hoax. This is not to be presumed. & v. S~arrow [I S.C.R at 1105; R. v. Sect'y of State [I C.N.L.R. 86 at 99 (Eng. C.A.). 13. NIBIAFN submits that the constitutional law, the statute law, the common law, the 2 0 colonial law and the international law applicable in this case have been misstated by Respondent and Intervenors in support. Unfortunate cumulative effects may result not only for Appellants but for all aboriginal peoples of Canada if incomplete understanding of the law or insufficient attention to the case law is not challenged and the law clarified. 14. Cases cited by Respondent in support of the propositions that in the past aboriginal title had no legal protection, was not a proprietary right and could, at any time be extinguished by the Crown in right of Canada or in right of a province do not, in fact, stand for those propositions and have been misinterpreted by Respondent (App. tab 1). 15. There appears to be an assumption among Respondent and Intervenors in support that legal principles, indeed rights, must be read differently when being applied with reference to aboriginal peoples. Common law land title deriving from the Sovereign becomes an "ephemeral right". The "Goodwill of the Sovereign" implies that any due process requirement for the taking 40 of title is suddenly inapplicable. "Possession" is no longer the enforceable right in land recognized by the doctrine ad the courts. Requirements for "effective occupation" to assert state sovereignty, so flexibly interpreted in instances such as Canada's claims to the Arctic (infra gar. 51), become stringent tests of full and exclusive use and occupation. 16. Treaties, statutes and other instruments are to be given a large and liberal interpretation in favour of Indians. Even where this principle is not applicable, Indians are certainly entitled to equal treatment under and equal protection through the law. This is particularly true in the delicate matter of Indian property rights and the protection provided by the law.

10 4. FACTUM NIBIAFN PART I11 ARGUMENT We cannot recognize any peculiar law of real property applying to the Indians - the common law is not part savage and part civilized. The Indians, like other inhabitants of the country, can only convey such lands as they legally hold, and they must convey by deed executed by themselves, or by some person holding proper authority from them under seal, to convey their estate in their name. Sheldon v. Ramsav (1852) 9 U.C.Q.B. 105 at 123, in 1 C.N.L.C. 439 at This Court has characterized the aboriginal right as ~ ui eeneris. Sui ~eneris means "unique". It does not mean "weak" or "empty". Contrary to the contentions of Respondent, Canada and other Intervenors in support, the authorities establish clearly that Indian title is an interest in land. Black's Law Dictionary, at 1286; C.P. v. Paul [I S.C.R. 654 at ; Guerin v. & [I S.C.R. 335 at 349, ; Calder v. A.G.B.C. [I9731 S.C.R. 313 at In the context of aboriginal title, sui peneris refers not so much to totally new rules but rather to a unique blending of established rules. For example the analogy drawn to usufruct in Roman Law by Strong J. in St. Catharines Milling v. The Oueen (1887), 13 S.C.R. 577 at 604; Black's Law Dictionarv, at See also App. tab 1. B. ABORIGINAL TITLE AND THE ROYAL PROCLAMATION OF The Proclamation (App. tab 2) must be read in light of the Law of Nations and British common law contemporary to it as well as in its historical context. Island of Palmas Case (1928) 2 R.I.A.A. 829 at , The Proclamation, when read in the proper historical and legal context, illustrates not the divine right of the Sovereign to extinguish at will but rather the external (Law of Nations) and internal (Common Law) constraints on the Sovereign. 21. The issue in this case is not when and how the Sovereign unilaterally extinguished Appellants' rights but rather whether the Sovereign could extinguish those rights in the manner asserted by Respondent and Intervenors in suppoa. The law when clearly and comprehensively stated provides the answer, which is negative.

11 5. FACTUM NIB/AFN PART 111 ARGUMENT C. THE ROYAL PROCLAMATION APPLIES IN THE LAND CLAIM AREA The Proclamation has the force of statute. The onus is on the Respondent to prove abrogation of the procedural requirements enshrined in the Proclamation. & v. Lady McMaster [I9261 Ex. C.R. 68 at 72; Cmbell v. Hall (1774) 1 Cowp. 204 (Eng. K.B.). 23. An examination of the Ouebec Act, 14 Geo. 111 (1774), c. 83 (U.K.) (App. tab 3), reveals no explicit or implicit abrogation of those procedural requirements The stated purpose of the annexation clause of the Act was to fill a judicial void, create stability and regulate settlements and trade in Indian territories by imposing civil government on the former subjects of France inhabiting the interior. An abrogation of the procedural rules enshrined in the Proclamation would have run contrary to this stated purpose by destabilizing settlement and trade in the Territory. Coffin, The Province of Ouebec (1896) at 408, ,419,430; Reid, "The Quebec Fur-Traders" (1925) 20, 28-29; Sosin, "The French Settlements" (1958) at 191, 195, 200,203, Instructions transmitted to Carleton (later Lord Dorchester) on January 3, 1775, after the adoption of the Ouebec Act, clearly demonstrate that procedural requirements respecting public purchase by mutual agreement, stipulated in the Proclamation, remained in force. Art. 32 of the Instructions and annexed "Plan" in Shortt & Doughty, App. tab Canada contends (par. 53) that had the procedural formalities of the Proclamation been regarded as binding on subseciuent colonial governors, there would have been no need to repeat them in the Instructions. The procedural requirements of fhe Proclamation and the Instructions to Carleton must be viewed as an indissoluble whole, elaborating and clarifying the complex system of rules governing Indian affairs and the fur trade. This was not the sole example of a redundancy. Art. 1 of the Plan provided for in Art. 32 of the Instructions stipulates that the fur trade is open to all the King's subjects. This is already provided for in Part IV of the Proclamation. 27. Art. 32 of the Instructions which allows all persons in the interior access to the fur trade,

12 6. FACTUM NIBIAFN PART I11 ARGUMENT 10 provides that such persons must obtain a licence from the governor of the colony in which they reside "as stipulated in our Royal Proclamation of 1763". This reference clearly establishes that this procedural requirement survived the Quebec Act. In the absence of evidence to the contrary, we must presume that the other procedural rules remained in force. 28. There is no case law, except the judgments below, in support of the argument that the procedural requirements of the Proclamation were repealed by the Quebec Act. There are strong authorities that these procedural requirements were still in force after Confederation. 20 St. Catharines Milling, SuDra at , 648; Ladv McMaster, supra at 73-74; Easterbrook v. The Oueen [I9311 S.C.R. 210 at The annexation of Indian Territories to the Province of Quebec had no effect on Indian title itself. Its only effect was to enlarge the territory in which these procedural rules applied. Slattery, The Land Ri~hts of Indinenous Canadian Peo~le~. at ; Montgomery v. Ives (1849) 13 Smedes & M. 161 (Miss. H.C.) cited in Slattery D. CONSTRAINTS ON THE SOVEREIGN - THE HISTORICAL CONTEXT 30. This Court recently examined in depth British-French-Indian Nation relationships in the middle years of the 18" century, concluding that Great Britain maintained relations with Indian nations "very close to those maintained between sovereign nationsn, and did "everything in (its) power to secure the alliance of each Indian Nation". R. v. Sioui [I S.C.R at In Sioui this Court rekgnized the Proclamation as an expression of the tenuous hold the British Crown had in North America. The very wording of the Royal Proclamation clearly shows that its objective, so far as the Indians were concerned, was to provide a solution to the problems created by the greed which hitherto some of the English had all too often demonstrated in buying up Indian land at low prices. The situation was causing dangerous trouble among the Indians and the Royal Proclamation was meant to remedy this (at 1064).

13 7. FACTUM NIBIAFN PART I11 ARGUMENT E. EXTERNAL CONSTRAINTS ON THE SOVEREIGN - LAW OF NATIONS Indian Nations in the 18& century were recognized by international law as independent of the European powers claiming sovereignty to portions of North America. Sioui, sudra at It must be stressed that the statement of the Chief Justice in Simon v. The Oueen respecting international law concerned the application of the principles of international law to Indian treaties. The Chief Justice stated that an Indian treaty is unique, sui generis and is neither created nor terminated according to the rules of international law. Simon v. The Oueen, SuDra at It cannot be denied, however, that the manner in which European Sovereigns acquired territory during the colonial period was determined by the Law of Nations. 30 Johnson v. M'Intosh 21 U.S. 240 (1823); Worcester v. Georgia 31 U.S. 515 (1832); Kent's Commentaries at ; O'Connell, International Law at The doctrines of "effective occupation" and "social and political organization" were rules of the Law of Nations, applicable in the colonial period, governing acquisition by states of terrae nullius - a territory belonging to no-one. Western Sahara, Advisory Opinion (1975) I.C.J. Rep. 12 at This Court's unanimous judgment in Sioui and the very terms of the Proclamation direct 4 0 that the British did not consider the Indian Territories as prrae nullius. They were inhabited by "Tribes" and "Nations" havi& a special status under international law, self-governing and capable of forming alliances. In Western Sahara the Couft considered just such a situation, finding significant the attitude of Spain towards the tribes in question. Sioui, suora; Western Sahara, SuDra. 37. The international law scholar D.P. O'Connell is unequivocal in his analysis of the French, British and American vision of North America. It was not Jerrae nullius. Sovereignty had to be acquired or perfected through conauest or cession.

14 8. FACTUM NIBIAFN PART I11 ARGUMENT Discovery might have been claimed as a basis of title, but it was a basis valid only as against other claimants. It was not in itself understood to be the basis of title vis-a-vis the inhabitants, for the very reason that the territories in question were never treated as terrae nullius. To equate, as so many have done, therefore, occupation of uninhabited lands with the growth of colonial dominion over America and Africa, is to misunderstand the process at work.... The more secularly-minded northerners justified (their dominion) on conquest or on cession. As late as the eighteenth and nineteenth centuries this is understood by Blackstone, by Kent, and by Story as the mode of acquisition of the North American colonies, and the United States decisions reflected their views. O'Connell, SuDra at 469; Worcester v. Geornia. sudra Contrary to what Canada asserts and Respondents and other Intervenors in support appear to assume, Britain's title to Ontario was not original title obtained by occupation of terrae nullius, but rather derivative title arising from treaties and agreements with Indian Nations. This is how the British explained the process to the Indian Nations. Brothers: You have told me, there were people who say that the King your father when he made peace with the United States gave away your lands to them. I cannot think the government of the United States would hold that language, it must come from illinformed individuals. You will know, that no man can give what is not his own... The King's rights with respect to your territory were against the nations of Europe; these he resigned to the States. But the King never had any rights against you but to such parts of the country as had been fairly ceded by yourselves with your own free consent by public convention and sale. How then can it be said that he gave away your lands? Lord Dorchester to the Confederated Indian Nations (1791) in Clarke, Native Liberty, Crown Sovereignty (1990) at 80; Western Sahara, Sugra at Canada suggests that in areas formerly held by the Crown of France no aboriginal rights were acauired against the discovering European power because the "pleasure" of France was to 4 0 extinguish them (par. 47). 40. Aboriginal rights and titles are not ~cauira from a European Sovereign. By definition they are pre-existing rights asserted against the Sovereign. New France was not and was not considered by the French Crown to be errae nulliu~. The French Regime in Canada stood in a continuous state of insecurity and dependence vis-a-vis Indian nations. Sioui, SuDra; O'Connell, SuDra: Johnson v. M'Intosh, sudra at As between the French and English sovereigns, the French Crown could not convey

15 9. FACTUM NIBIAFN PART I11 ARGUMENT better title than it held. This principle - Nemo dat auod non habet - was and is an established rule of international law and British law Brownlie, Princi~les of Public International Law, (3rd ed. 1979) at To the extent that St. Catharines Milling stands for the proposition that Indian title is dependent upon the Crown's recognition for its existence and that consequently no aboriginal or Indian title survived the French regime or that Indian title is not a beneficial interest in land, it has been superseded by subsequent authority. The case law and the doctrine have evolved. O'Connell, SuDra at 470. See also: S~arrow, ~u~ra; Guerin. sudra; Calder. sudra; Dionne "Les Postulats de la Commission Dorion" (1991). 43. Respondent, Canada and other Intervenors in support argue that unilateral extinguishment through sovereign intent is possible and has occurred in Ontario Canada accuses Appellants of building an argument for legislative or consensual requirements for extinguishment upon a faulty premise - an incorrect characterization of Appellants' title. NIBIAFN submits that it is the Respondent and Intervenors in support who have built the theory of unilateral extinguishment upon a faulty premise - an incorrect characterization of the Crown's title. F. INTERNAL CONSTRAINTS ON THE SOVEREIGN Respondents and Intervenors in support put much emphasis on certain language of the Proclamation without, however, setting it in the context of English Common Law. They appear particularly attracted by the e~pressions "Royal Will and Pleasure", and "for the present until Our further Pleasure be known". Respondents conclude that "it was of the very nature of the rights of the Indians under the Proclamation that they were.' subject to change by the Crown at any time" (par. 129). 46. As early as the 16"' century it was established that requirements of formality conditioned acts of the Sovereign affecting property. The King cannot take nor part with any thing but by matter of record. caster lduchv on Case (1562) 1 Plowd. 212 at 327 note (i). -

16 11. FACTUM NIBJAFN PART I11 ARGUMENT Nations declared to be living under its "protection". This is a practice continued today by the Government of Canada with respect to the Arctic. Canada's sovereignty in the Arctic is indivisible. It embraces land, sea, and ice. From time immemorial Canada's Inuit people have used and occupied the ice as they have used and occupied the land. Joe Clark, September 10, 1985 and material at App. tab 6. See also: Kent's Commentarie~, m; Cherokee Nation v. Borgiij 30 U.S. (5 Pet.) 1 (1831) at 17; Worcester, jmra at There is nothing unusual or demeaning in the manner in which the Proclamation describes Indian title. It recognized the Indian Nations to be in possession. The Crown did not claim any possession adverse to the Indians. References to "our Sovereignty, Protection and Dominion" are explained by the British land tenure system, which, since the Norman Conquest had had as its leitmotif that "land in the last resort is held of the king". Maitland, SUdra at The use of the expression "possession" with reference to the Indian Nations when 30 considered in the context of British law confirms title in the Indian Nations rather than, as Respondent suggests, recognizing an ephemeral right. Possession is the root of title. The Crown in admitting the "possession" of the Nations and Tribes, was estopped from attacking their title. Possession by itself gives a good title against all the world, except someone having a better legal right to possession. This last proposition is fundamental to our concept of title to land. If the occupier's possession is disturbed, for example by trespass or nuisance, he can sue on the strength of his possession and does not have to prove his title. It follows that the Derson disturbing the occu~ier's possession cannot attack his title. if he admits his ~ossession; (emphasis added) : Megarry and Wade, at G. CONSTRAINTS APPLY TO "COURSE OF CONDUCT" 54. If external and internal constraints condition individual actions how much more significant are they in respect of a "course of conduct". The Crown cannot seek legitimacy by compounding illegitimacy. A "course of conduct" or a "legal regime" premised on invalid acts is

17 12. FACTUM NIBIAFN PART I11 ARGUMENT itself invalid The legal tests proposed in Deleamuukw v. R. (813191, Smithers 0843 (B.C.S.C.)) at 239, adopted by Canada and other intervening Attorneys General, are not correct and should not be endorsed by this Court. H. THE TEMAGAMI AS A "NATION OR TRIBE" 56. The Temagami as described by the learned trial judge, confirmed by the Record and authorities, was a "Tribe" or "Nation" within the meaning of the Proclamation. The meaning of 20 "Tribe" or "Nation" in the Proclamation and the manner prescribed for dealing with their title are questions of law not fact. 57. During the 17&, 18& and 19& centuries Europeans recognized and dealt with a large number of Indian societies which varied considerably in size and social structure. Very small social units were still considered Nations or Tribes. Disparity in size is only too apparent in the 30 First Nations recognized today by Canada (App. tab 7). Jesuit Rel. (vol. XVIII, at ), App. tab 8. See also: Heidenreich at (reference to Outimagami); Graham at (where the Mekesew tribe is described by Henday "met with five tents of Mekesew, or Eagle Indians"); Ellis at The "appropriate" organization of a northern hunting society prior to the establishment of "trading posts" was precisely the "loosely-knit organization without any strong or real central 4 0 leadership" at 636) and "simply heads of families" at 623) found by the trial judge. This was the essence of the "kaditional" or "aboriginal" band as compared to the later "trading post" or "government band". Speck, (1926) at ; Speck, (1915) at 290; Rogers at Steele, J. acknowledged the distinction between the "traditional" band, the "trading post" band and the "government or registered band" at 616). The Proclamation referred of course to aboriginal organization not to the later structures formed in response to contact.

18 13. FACTUM NIBIAFN PART I11 ARGUMENT Canada in fact concedes the Temagami were an organized society in 1763 but questions their distinctiveness as a "tribe" or "Nation" in 1850 (par. 28). Proof of distinctiveness appears to be yet another burden being added to aboriginal claimants as a result of this case. The test does not appear in the authorities and should not be endorsed by this Court as yet another hurdle for aboriginal claimants to vault. 61. In any event uncontested, untouched and conclusive linguistic evidence establishes Appellants' "distinctiveness" (App. tab 9). 62. On the question of Temagami occupation and social organization there is no need to 20 overturn Steele, J. on his findings of fact. He did however, err in law. I. DUE PROCESS REOUIREMENTS AND THE ROBINSON-HURON TREATY If Respondent's speculations surrounding the alleged participation of the Temagami at the signing of the Treaty are accepted, the Treaty and its process would be unique in the history of Canadian treaty making as it applies to lands and resources. 64. Throughout that process and across the country the record shows great concern on the part of Indian and non-indian participants alike in regard to representativity (App. tab 10). 65. In fact, in the case of the Treaty, other bands whose territories lay within the treaty area 40 were overlooked during the treaty process. This was acknowledged by Canada and remedied by negotiations and signing a separate treaty with these bands in Surtees, at 28-29; W'illiams Treaty 1923; Morris at 20 (all at App. tab 11). 66. This concern as to "legitimacy" and "mandate" is: reflected today in the stringent criteria for gcce~tance into the land claims process and the legal safeguards insisted upon by the federal government in regard to powers of attorney for signing representatives and subsequent ratification of instruments. Appellants' rights should not be held to be relinquished or surrendered on the basis of presuming a mandate for Tagawinini which would never have been accepted by treaty Commissioners in the past or government lawyers today (App. tab 12).

19 14. FACTUM NIBIAFN PART I11 ARGUMENT 67. Contrary to Respondent's hypothesis, it is more logical to assume that Tagawanini signed the Treaty on behalf of his Band, as stated in the Treaty. His Band obtained a reserve at Wanapetei, as provided in the Treaty and they continue to reside there to this day (App. tab 13) The inferences drawn by the courts below, Respondent and Intervenors in support regarding to the execution of the Treaty raise important questions of due process requirements. 69. The aboriginal right is an interest in land. A right by definition requires a degree of due process and formality in matters affecting it. A component of the aboriginal right invoked by Appellants is the entitlement to due process in its recognition, clarification or transformation Indian First Nations concluded amongst themselves treaties on such matters as peace and friendship, cominerce and boundaries prior to and after contact with European Nations. The right to conclude treaties freely entered into with the intention to be bound is itself a fundamental aboriginal right and freedom recognized by the Courts and acted upon by the Crown, not a method of abrogating rights and freedoms. 71. The Canadian Courts have identified the treaty process as an important expression of due process in dealing with aboriginal peoples and have implied a duty on the Crown to treat with aboriginal peoples in a fair, open and voluntary process. S~arrow supra,; MacMillan Bloedel Ltd. v. Mullin [I C.N.L.R. 58 at The duty on the Crown to treat with aboriginal peoples must be exercised in a fashion that meets the tests of natural justice, consent legally given, an intention to create legal obligations zyd absence of erior. 73. The authorities cited by Respondent for its submission that land cession treaties can be either formal or informal in nature do not support that contention. What the authorities do establish is that the degree of requisite formality is determined by the circumstances under which the treaty is concluded. Sioui. suya at ; v. White and Bob (1964) 52 W.W.R. 193 (B.C.C.A.) at

20 15. FACTUM NIBIAFN PART I11 ARGUMENT A holding on the basis of the Record in this case that the Temagami Nation "fully, freely and voluntarily surrendered, ceded, granted and conveyed unto Her Majesty, her heirs and successors for ever, all their right, title and interest to, and in the whole of, the territory" would violate the requirements of due process. 75. The Courts, during the period contemporary to the Treaty and the purported adhesion by the Temagami Nation, were clearly stating in regard to transactions respecting interest in lands and resources, that First Nations could not be considered bound unless clear authority for their representatives was established In a case on the Treaty it was held that in matters of agency, a band of Indians should be considered equivalent to a government. In agency, individuals are liable to the extent of power they have a~~aientlp given, government is liable only to the extent of the power actuallv given. I think that for this or a like purpose this band of Indians should be considered as standing in the same position as any other high contracting power or government, and it is a proposition of law that if an agent of a government exceed his authority, the principal is not bound. 30 A.G. Ontario v. Francis 2 C.N.L.C. 6 (1889) (Ont. H.C.) at In 1852, shortly after the signing of the Treaty it was held: Nothing is shown here to prove any authority delegated to Captain Brant to part with these lands on the Grand River, so that the Indians could be dispossessed by his act of their interest in it whatever that might be.... He was, no doubt, a chief among them; but we cannot say that that gave him any right to alienate to individuals whatever portion he pleased of the lands held by the crown for their use, and upon such terms as he pleased. Sheldon v. Ramsay, sb~rat Whatever other formalities may be required to eskblish a binding treaty relationship, an intention and consent to be bound are fundamental requirements. In establishing whether that intention and consent are present the subsequent conduct of the parties may be considered. Sioui, JuDra at Canada as a party to the Treaty did not consent to or acknowledge a treaty relationship

21 16. FACTUM NIBIAFN PART I11 ARGUMENT with the Temagami Nation until this case came to trial. at Actions by individual Indians in accepting "treaty payments" or requesting government protection for a land base do not constitutk adhesion by implication particularly as Canada continued to maintain after these events that no treaty relationship existed. There continued to be no intention or consent by Canada to be bound. This position changed abruptly at trial. 81. This Court has condemned such sharp dealing. S~arrow. sudra at J. NO EXTINGUISHMENT BY LEGISLATION OR EXECUTIVE ACT 82. Respondent, Canada and other Intervenors in support invoke colonial, provincial and federal legislation and executive acts which they allege are incompatible with the continued existence of aboriginal title in the land claim area. NIBIAFN submits these arguments are 30 irrelevant. \ 83. Extinguishment must only take place as a result of clear and plain intention. The fact that a Court is forced to indulge in a determination as to when an act of the Sovereign becomes sufficiently "incompatible" with aboriginal title to extinguish that title confirms the absence of clear and plain intention Clear and plain intention would have to take the form of a specific repeal of the Proclamatiod replacing it with.bther specific provisions for relations with First Nations and their lands. Respondent, upon whom the burden rests to establish such clear and plain intention, has not brought forward any legislation specifically repealing the Royal Proclamation of St. Catharines Milling, sudra (Strong J.); Calder. sudra (Hall J.) confirmed in S~arrow, miei The 1868 Indian Act was certainly not such legislation. It contemplated only "reserves", not unsurrendered land in its surrender provisions (App. tab 14).

22 17. FACTUM NIBIAFN PART I11 ARGUMENT The argument of Respondent and Intervenors in support amounts to claims of implied extinguishment of aboriginal title and of the Royal Proclamation or its protection. Implied repeal, especially where fundamental rights are involved, is not to be lightly countenanced. 10 R. v. Mercure [I S.C.R. 234 at , (La Forest J.). 87. The general provisions of the legislation which is the subject of the constitutional question had, at all times, to yield before the specific and elaborate rules on the acquisition of Indian interests in land set out in the Proclamation. mwa v. Eastview, [I9411 S.C.R. 448 at ; Driedger (2d ed., 1983) at K. FRUSTRATION OF EXERCISE NOT AN ABROGATION OF A RIGHT 88. At most, legislation to which this Court is referred by Respondents, Canada and other Intervenors in support may have had the effect of frustrating the exercise of aboriginal rights. It could not have had the effect of extinguishing those rights. 30 Suarrow, supra; R. v. Dennv [1990] 2 C.N.L.R. 115; R. v. Arcand [I C.N.L.R. 110; R. v. Flett [I C.N.L.R. 128, leave refused [I C.N.L.R L. PROVINCIAL STATUTES NOT INCORPORATED INTO FEDERAL LAW The submissions of Respondent, Canada and other Intervenors in support on s. 88 of the Indian Act is based on a misreading of Dick v. The Oueen El S.C.R. 309 and if upheld by this Court would render meaningless the constitutional division of powers on the matter of Indians. i) Dick v. The Oueen 90. was not a case dealing with aboriginal rights. Beetz J. states very clearly that a law of general application contemplated by s. 88 of the Indian Act must be one not intended to have a particular impact upon Indians. If such an intention is absent there certainly can be no extinguishment. Respondent and Intervenors in support, however, argue that the provincial laws beiig alleged do demonstrate an intention to extinguish aboriginal title. These statutes are, therefore, lifted out of the category of "laws of general application" as understood in u.

23 18. FACTUM NIBIAFN PART I11 ARGUMENT Being provincial legislation intended to affect Indians aua Indians, the legislation is immediately yltra vires. Not being laws of general application, they are not contemplated by s. 88 and are not incorporated ii) Section 88 Cannot Authorize Le~islative Interdelegation 91. If possible, s. 88 must be read to be intra vires, as Parliament intended. The argument of Respondent and Intervenors in support suggests a reading of s. 88 which goes far beyond mere anticipatory incorporation by reference and becomes impermissible legislative inter-delegation. The delegate here would not be some administrative body, but rather the legislature of Ontario as maker of legislative policy. A.G. Ont. v. Scott S.C.R. 137 at ; Re Peralta (1985) 16 D.L.R. (4th) 259 (Ont. C.A.) at , aff'd, [I S.C.R The effect of this legislative interdelegation as proposed would be irrevocable and irreparable. Aboriginal title would disappear and the jurisdiction of Parliament over the lands in question would thereafter cease. 30 A.G. Nova Scotia v. A.G. Canada, [I9511 S.C.R. 31, passim. 93. This Court cannot sanction an interpretation of s. 88 which makes accountability for legislation illusory. The division of powers in respect of Indian lands guarantees the special responsibility of the federal government to uphold the Crown's fiduciary obligations toward aboriginal peoples. La Forest, "Delegation of Legislative Powers in Canada" at ; Sioui, sups at ; Re~ort on the Affairs of the Indians in Canada, Sessional Paper No. 2, vol. 4, Journals of the Legislative Assembly, 1847, Appendix T, App. tab 15. M. APPROPRIATE REMEDY 94. Monetary compensation as proposed by Respondent and Canada is no remedy in a case of breach of fiduciary duties. Respondent and Canada may not invoke their own turpitude. To award only a monetary remedy in such circumstances when an alternative remedy is both available and appropriate would in my view be unfair and unjust.

24 19. FACTUM NIBIAFN PART I11 ARGUMENT Lac Minerals Ltd, v. International Corona Resources Ltd,, [I S. C.R. 574 at An alternative remedy does exist. In reply to pretensions by Respondent and Canada that uncertainty would result from any holding by this Court that Appellants' rights are not extinguished, NIBIAFN submits that a transitional period should be ordered to allow Appellants, Canada and Respondent to establish appropriate treaty relations. 96. In order to ensure that justice is done, constitutionally protected rights are vindicated, the Rule of Law upheld and to avoid uncertainty, this Court has authority to order such a remedy. Reference re: Manitoba Language Rights [I S.C.R. 721, with further orders [I S.C.R. 347 and No , 7/12/90; Lac Minerals Ltd.. sudra at ; R. v. Swain, S.C.C. No , 2/5/90 at (per Lamer C.J.); Re Paauette (No. 2) (1987) 46 D.L.R. (4th) 81 (Alta. C.A.) at , leave refused [I S.C.R. xii; R. v. Brydkes [I S.C.R. 190 at In fashioning a remedy this Court should be guided by equitable principles. 30 Lac Minerals Ltd., sudra at 672; Brown v. Board of Education, 347 U.S. 483 (1954) and 349 U.S. 294 (1955) at NIBIAFN respectfully suggests that the Court give consideration to a remedy in the form set out at Tab A (bound with this factum) The exceptional remedy suggested is appropriate, permitted and required to give purposive effect to ss. 35 and 52 of the Constitution Act This Court has held that the minimum content of s. 35 is to the entitle aboriginal peoples of Canada to have their entrenched aboriginal rights dealt with through an appropriate treaty process. Without such a process, transactions affecting the Land. Claim Area will continue and Appellants' aboriginal title, though held to be unextinguished and constitutionally entrenched, will be honoured in the breach.

25 20. FACTUM NIBIAFN PART IV ORDER SOUGHT - PART IV - ORDER SOUGHT For all of these reasons and the reasons advanced by Appellants and other Intervenors in support, Intervenor NIBIAFN requests that this Honourable Court: 1) Answer the constitutional question in the negative; 2) Allow the appeal; 20 3) Order a remedy in the form set out at Tab A (bound with this factum); 4) ~ake an appropriate order for costs of this intervention on a solicitor and client basis. ALL OF WHICH IS RESPECTFULLY SUBMITTED. 30 Dated at Montreal, May 12, 1991 Peter W. Hutchins PETER W. HUTCHINS DIANE H. SOROKA FRANKLIN S. GERTLER OF COUNSEL FOR INTERVENOR NATIONAL INDIAN BROTHERHOOD1 ASSEMBLY OF FIRST NATIONS

26 21. FACTUM NIBIAFN PART V TABLE OF AUTHORITIES PART V - TABLE OF AUTHORITIES Cases Factum ~ a ~ e A.G. Nova Scotia v. A.G. Canada [I9511 S.C.R A.G. Ontario v. Francis (1889), C.N.L.C. 6 (Ont. H.C.) 15 A.G. Ontario v. &QQ [I9561 S.C.R Brown v. Board of Education 347 U.S. 483 (1954) 19 Brown v. Board of Education 349 U.S. 294 (1955) 19 Calder v. A.G.B.C S.C.R ,9,16 Cam~bell v. (1774), 1 Cowp. 204 (Eng.R.B.) 5 Cherokee Nation v. Georgia 30 U.S. (5 Pet.) 1 (1831) 11 C.P. v. Paul [I S.C.R Deleamuukw v. R. (8 March 1991), Smithers 0843 (B.C.S.C.) 12 - Dick v. R. [I98512 S.C.R Dziwenka v. The Oueen (1970) 16 D.L.R. 190 (Alta C.A.) Easterbrook v. The Oueen [I9311 S.C.R ,6 Guerin v. R. [I S.C.R ,9 40 Bland of Palmas Case (1928) R.I.A.A. 829 Johnson v. M'Intosh 21 U.S. 240 (1823) Lac Minerals Ltd. v. International Corona Resources Ltd.: [I S.C.R ,19 Lancaster (Duchv ofl Case (1562) 1 Plowd Macmillan Bloedel Ltd, v. Mullin [I C.N.L.R. 58 (J3.C.C.A.) 14

27 22. FACTUM NIBIAFN PART V TABLE OF AUTHORITIES Cases F m Ottawa v. Eastview [I9411 S.C.R lo R. v. Arcand C.N.L.R. 110(AlfaQ.B.) 17 & V. B~dges [1990] 1 S.C.R & v. Denny [I C.N.L.R. 115 (N.S.C.A.); discontinued [1990] 2 S.C.R. x. R. v. Flett [I C.N.L.R. 128 (Man. Q.B.), leave to appeal refused [I C.N.L.R. 140 (Man. C.A.) 17 - R. v. Lady McMaster Ex. C.R & v. Mercure [I S.C.R R. v. Sect'y of State [I C.N.L.R. 86 (Eng. C.A.) 3 & v. Sioui [I S.C.R ,7,8;14,15,18 & v. S~arrow [1990] 1 S.C.R ,9,14,16,17,19 30 & v. Swain S.C.C. No , May 2, R. v. White and Bob (1964) 52 W.W.R. 193 aff'd [I9651 S.C.R. vi 14 Reference re: Manitoba Language Rig;h~ [I S.C.R. 721, with further orders, [I S. C.R. 347 and S. C.C. No , December 7, Re Paauette (No. 2) (1987) 46 D.L.R. (4th) 81, 40 leave refused [I S.C.R. xii 19 Re Peralta (1985), 16 D.L.R. (4th) 259 (Ont. C.A.), aff'd, [I S.C.R Sheldon v. Rarnsay (1852) 9 U.C.Q.B. 105 in C.N.L.C ,15 Simon v. The Queen [I S.C.R ,7 St.Catharine's Milling & Lumber Co, v. The Queen (1887) 13 S.C.R. 577; (1888) 14 A.C. 46 4,6,16

28 23. FACTUM NIBIAFN PART V TABLE OF AUTHORITIES Cases Factum ~ afe Union Marine Gen'l Ins. CQ, v. Bodnorchedk [I9581 S.C.R. 399 U.S. v. Santa Fe Pacific R. Co, 314 U.S. 339 (1941) Western Sahara, Advisory Opinion (1975) I.C.J. Rep. 12 Worcester v. Geor~ia, 31 U.S. 515 (1832) 20 Authors Alvord, C.W., The Mississi~i Vallev in British Politics, vol. I1 (Cheveland: Arthur H. Clark, 1917) Beer, G.L., British Colonial Policy (New York: Macmillan, 1907) Black's Law Dictiona~ 5th ed. (West Publishing: St-Paul, ) Brownlie, I., Princi~les of Public International Law, 3d ed. (Oxford: Clarendon Press, 1979) Clarke, B., Native (Montreal: McGill - Queen's University Press, 1990) Coffin, V., "The Province of Quebec and the Early American Revolution" (1896) Bulletin of the University of Wisconsin, Economics, Political Science, and History Series, Vol. I, 40 No.3,p.275 Dionne, P., "Les Postulats de la Commission Dorion et le Titre Aborigkne au Quebec: Vigt Ans Aprbs" (1991) 51. Rev. du B. 127 Driedger, E.A., S;'onstruction of Statutes, 2d ed. (Toronto: Butterworths, 1983) Ellis, H., A Vova~e to Hudson's Bay (London: H. Whitridge, 1848)

29 24. FACTUM NIBIAFN PART V TABLE OF AUTHORITIES Authors Factum Dage 10 Heidenreich, C., Huronia: A - i H Huron Indians (Toronto: McClelland and Stewart, 1971) Holmes, 0. W., ed., Kent's Commentaries. on American Law (Boston: Little, Brown) La Forest, G.V., "Delegation of Legislative Powers in Canada" (1975), 21 McG.L.J Maitland, F. W., The Constitutional his to^ of Eneland (Cambridge: Cambridge Unviersity Press, 1909) Megarry, R., and Wade, H., The Law of Real Pro~em, 4th ed. (London: Stevens and Sons, 1975) O'Connell, P.P., International Law (London: Stevens & Sons, 1965) 30 Reid, M., "The Quebec Fur-Traders and Western Policy, ", (1925) VI C.H.R. 15 Rogers, E.S., "Band Organization Among the Indians of Eastern Subarctic Canada" (1965) National Museums of Canada, Bulletin No. 228, Anthropological Series No. 84 Shorn, A. and Doughty, A.G., Documents Relating to the Constitutional History of Canada , 2nd ed. (Ottawa: King's Printer, 19 18) Slattery, B., The Land Rights of Indigenous Canadian Peo~les Phil. Thesis, University of Oxford, 1979) Sosin, J. "The French Settlements in British Policy for the North American Interior " (1958) XXXIX C.H;R. 185 Speck, F.G., A Northern Algonauian Source Book, ed. by E.S. Rogers (New York: Garland, 1985) Williams, G., ed. Andrew Graham's Observations on Hudson's Bav (London: Hudson's Bay Record Society, 1969)

30 25. FACTUM NIBIAFN PART V TABLE OF AUTHORITIES Leeal Instruments Factum D ~PQ,4n Act ~rovidin~ for the organization of the Department of the Secretary of State of Canada. and for the 10 Management of Indian and Ordonnance Lands, S.C. 1868, cap An Act respectin9 Civilization and Enfranchisement of certain Indians, C.S.C. 1859, cap Instructions to Governor Guy Carleton, 1775 from King George I11 and annexed Plan reproduced in A. Shortt and A.G. Doughty, Documents Relating; to the Constitutional his to^ of Canada * (Ottawa: King's Printer, 1907) 5 Ouebec Act (U.K.), 1774, 14 George 111, c. 83, reprinted in R.S.C. 1985, App. 2 5,6 Royal Proclamation, October 7, 1763, reprinted in R.S.C. 1985, App. 1 4,5,6,7,10,11 Williams Treaty With the Chippewa Indians of Christian Island, Georgina Island and Rama, October 31, 1923 (Ottawa: Queen's Printer, 1967) 13 Other Materials Black's Law Dictionary, 5th ed. (1979) West Publishing Co., St.Pau1 Minn Canada, H.C., Debates, Vol. V, 1985 (10 September 1985) 11 Canada, Report of the to Review Com~rehensive Claims Policy (Ottawa: Department of Indian Affairs and Northern Development) (Chair: Murray Coolican) 11 The Jesuit Relations and Allied Documents, Thwaites, R.G., ed. T 9 in New France vol. XVIII (Cleveland: Burrows Bros, 1898) 12