ROSS RIVER DENA COUNCIL Plaintiff v. THE ATTORNEY GENERAL OF CANADA, 2012 YKSC 4

SUPREME COURT OF YUKON Citation: Ross River Dena Council v. The Attorney General of Canada, 2012 YKSC 4 Date: 20120131 S.C. No. 05-A0043 06-A0092 Registry: Whitehorse Between: ROSS RIVER DENA COUNCIL Plaintiff And THE ATTORNEY GENERAL OF CANADA (on behalf of and as the representative for Her Majesty the Queen in Right of Canada) Defendant Before: Mr. Justice L.F. Gower Appearances: Stephen L. Walsh Counsel for the Plaintiff Suzanne M. Duncan and Maegan M.

Hough Counsel for the Defendant REASONS FOR JUDGMENT INTRODUCTION [ 1 ] On July 15, 1870, over 7.5 million square kilometres of British North America – Rupert's Land and the North-western Territory – were incorporated into the young Dominion of Canada pursuant to the Rupert’s Land and North -western Territory Order (U. K . ) , 23 June 1870 , reprinted in R . S . C . 1985 , App. II , No. 9 ( the “ 1870 Order ”) . This vast area, composed largely of boreal forest, tundra and prairie, now amounts to nearly 75% of Canada's land mass. [1] One of the principal issues in this dispute is the

interpretation of a passage found in

Schedule A to the 1870 Order , as part of an Address to her Majesty the Queen from the Senate and House of Commons of the Dominion of Canada , dated December 16 and 17, 1867 ( the “ 1867 Address ”) : “And furthermore that , upon the transference of the territories in question to the Canadian Government , the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines .

" I refer to this throughout as “the relevant provision”. [ 2 ] This is the first phase of the trial in this matter . [2] The parties agreed in case management that the following threshold issues would be tried at the outset . I will refer to them as Questions #1 and #2, and they are as follows : 1.

Were the terms and conditions referred to in the Rupert’s Land and North-western Territory Order of June 23, 1870 concerning “the claims of the Indian tribes to compensation for lands required for purposes of settlement ” intended to have legal force and effect and give rise to obligations capable of being enforced by this Court ? 2.

If the terms and conditions referred to in the Rupert’s Land and North -western Territory Order of June 23, 1870 concerning “the claims of the Indian tribes to compensation for lands required for purposes of settlement ”, gave rise to obligations capable of being enforced by this Court , are those enforceable obligations of a fiduciary nature ? [ 3 ] The defendant (“Canada” or alternatively “the Crown”) successfully resisted an objection by the plaintiff, Ross River Dena Council (“RRDC”), to the admissibility of expert opinion evidence tendered by Canada to assist in determining Question #1 (see reasons cited as 2011 YKSC 87 ).

Following my ruling on that objection at the commencement of this trial, Dr. Paul G. McHugh was qualified , without further objection from RRDC, as an expert legal historian , qualified to research and interpret historical documents from an

historical perspective and to provide opinion evidence in the areas of the historical , political , legal and social context surrounding the creation of the 1870 Order , and the historical Crown -Aboriginal relations during that time . [ 4 ] For the reasons which follow, I answer both of the above questions in the negative. FACTUAL BACKGROUND [ 5 ] The following facts are not in dispute , and are taken almost verbatim from the Outline of RRDC's Argument: 1. RRDC is a band within the meaning of the Indian Act , R . S . C . 1985 , c.I-5. 2. RRDC and its members are a part of the Kaska tribe of Indians . 3.

The Kaska tribe of Indians - now known to the Crown as “the Kaska ” or “the Kaska Nation ” - is one of the Aboriginal peoples of Canada . More importantly for the purposes of these actions , the Kaska tribe of Indians is one of the Indian tribes referred to in the 1867 Address . 4. The Kaska claim as their traditional territory a tract of land which includes what is now the southeastern part of the Yukon Territory, as well as adjacent lands in the Northwest Territories and British Columbia, as shown on the map attached to the Statement of Claim as

Schedule “A”. The issues in these actions concern only the portion of the Kaska’s claimed traditional territory located in the Yukon. 5. The portion of the Kaska’s claimed traditional territory located in the Yukon was, prior to 1870, part of the North-western Territory referred to in s. 146 of the Constitution Act , 1867, formerly the British North America Act, 1867 (the “ BNA Act ”). 6.

In adopting the 1867 Address , the Canadian Parliament invoked s. 146 of the BNA Act to unite Rupert’s Land and the North - western Territory with Canada , and to grant the new Parliament of Canada authority to legislate for the welfare and good government of the new Territories . 7. The North -western Territory , including the portion of the Kaska’s claimed traditional territory located in the Yukon , was admitted into Canada on July 15, 1870 , pursuant to the combined effect of the 1870 Order and s. 146 of the BNA Act . 8.

Shortly after the acquisition of Rupert’s Land and the North-western Territory in 1870, Canada began a process of negotiating treaties with certain of the Aboriginal peoples occupying those lands: Treaty No.1 was concluded in 1871 and the last of the numbered treaties, Treaty No. 11 , was concluded in 1921. Those treaties are today referred to as the post-Confederation treaties. 9. In a “Communiqué” released on or about August 8, 1973, the Canada’s Minister of Indian of Affairs and Northern Development announced the federal government’s new comprehensive land claims policy. 10.

RRDC’s claims to Aboriginal title and rights in the Kaska traditional territory in the Yukon formed part of the claims of the Yukon Indian people, which were the first comprehensive claims accepted by Canada for negotiation in 1973 under the new claims policy. 11.

In 1981, Canada’s Minister of Indian Affairs issued a land claims policy statement which confirmed that since 1973 the federal government has operated under a policy that acknowledges Native interests in certain land areas claimed and allows for the negotiation of settlements of claims where these interests can be shown not to have been previously resolved. 12.

Canada’s comprehensive land claims policy, published in 1986 under the authority of the Minister of Indian Affairs, confirmed that the basis for the policy was the fulfillment of the treaty process through the conclusion of land claim agreements with those Aboriginal peoples of Canada that continue to use and occupy traditional lands and whose Aboriginal title has not been dealt with by treaty or superseded by law. 13. To date, the claims of the Kaska (and thus RRDC) to compensation for lands required for purposes of settlement have not been resolved. QUESTION #1 – JUSTICIABLE OBLIGATIONS? 1.

The General Principles of Statutory

Interpretation [ 6 ] The first question posed by the parties is: “Were the terms and conditions referred to in the Rupert’s Land and North-western Territory Order of June 23, 1870 concerning “the claims of the Indian tribes to compensation for lands required for purposes of settlement” intended to have legal force and effect and give rise to obligations capable of being enforced by this Court?” [ 7 ] In her text Sullivan on the Construction of Statutes , 5 th ed. (Markham: Lexis Nexis Canada Inc., 2008) , Professor Ruth Sullivan , at page 1, refer s to the “modern principle ” of statutory

interpretation. This was first described by Elmer Driedger , more than 30 years ago , in the first edition of his text , Construction of Statutes , where he stated :

“Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context, in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” [8] The modern principle has been cited and relied upon in innumerable decisions of Canadian courts, and in Re: Rizzo & RizzoShoes Ltd., (SCC), [1998] 1 S.C.R. 27, at para. 21, it was declared to be the preferred approach of the Supreme Courtof Canada. See also: Bell ExpressVu Limited Partnership v.

Rex, 2002 SCC 42, at paras. 26 and 27. [9] Professor Sullivan describes the three “dimensions” of the modern principle, at pages 1 and 2 of her text. The first dimensionis the textual meaning or ordinary meaning, which she notes that Driedger calls the “grammatical and ordinary sense of the words.” [10] The second dimension is legislative intent. Professor Sullivan states that this aspect of

interpretation is captured in Driedger’sreference to “the scheme and object of the Act and the intention of Parliament.” [11] The third dimension of the modern principle is compliance with established legal norms. Professor Sullivan notes that thesenorms are part of the “entire context” in which the words of

an Act must be read, and that they are also an integral part of legislativeintent. [12] At page 3 of her text, Professor Sullivan concludes as follows: “The modern principle says that the words of a legislative text must be read in their ordinary sense harmoniously with the scheme andobjects of the Act and the intention of the legislature. In an easy case, textual meaning, legislative intent and relevant norms all support asingle

interpretation. In hard cases, however, these dimensions are vague, obscure or point in different directions. In the hardest cases,the textual meaning seems plain, but cogent evidence of legislative intent (actual or presumed) makes the plain meaning unacceptable. Ifthe modern principle has a weakness, it is its failure to acknowledge and address the dilemma created by hard cases.” (italics alreadyadded, my underlining) At the end of the day, says Professor Sullivan, after taking into account all relevant and admissible considerations, the court must adoptan

interpretation that is “appropriate…reasonable and just” (p. 3). [13] In an earlier version of the same text, Professor Elmer Driedger said this about legislative intent: “…The “intention of Parliament” is, in a sense, a fiction. It is not an intention formulated by the mind of Parliament, for Parliament has no mind; and it is not the collective intention of the members of Parliament for no such collective intention exists. The only real intention is the intention of the sponsors and the draftsmen of the bill that gave rise to the Act; but that is not the intention of Parliament.

The “intention of Parliament” can only be an agreement by the majority that the words in the bill express what is to be known as the intention of Parliament.” The Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) The “majority” presumably refers to the majority of Parliament. [14] At page 8 of the 5th edition, Professor Sullivan speaks further about the relative weight to be given to the dimension ofparliamentary intention: “Similarly, if the legislature’s intention seems clear and relevant to the problem at hand, a pragmatic judge will assign it significantweight.

How much weight depends on • Where the evidence of legislative intent comes from and how cogent and compelling it is • How directly the intention relates to the circumstances of the dispute to be resolved. If the evidence of intention comes from a reliable source, its formulation is fairly precise, there are no competing intentions and theimplications for the facts of the case seem clear, then this factor appropriately receives considerable weight.” 2. Principles of

Interpretation Applicable to Constitutional Documents Relating to Aboriginal People

[15] One of the leading cases in this area is R. v. Blais, 2003 SCC 44. There, the Supreme Court of Canada was faced with thequestion of whether Métis are “Indians” within the meaning of a constitutional document, the Manitoba Natural Resources TransferAgreement (the “NRTA”). As a starting point, the Court considered the applicable principles of

interpretation at paras. 16-18: “[16] …[W]e turn to the issue before us: whether “Indians” in para. 13 of the NRTA include the Métis. The starting point in thisendeavour is that a statute -- and this includes statutes of constitutional force -- must be interpreted in accordance with the meaning of itswords, considered in context and with a view to the purpose they were intended to serve: see E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. As P.-A. Côté stated in the third edition of his treatise, "Any

interpretationthat divorces legal expression from the context of its enactment may produce absurd results" (The

Interpretation of Legislation inCanada (3rd ed. 2000), at p. 290). [17] The NRTA is a constitutional document. It must therefore be read generously within these contextual and historical confines. A court interpreting a constitutionally guaranteed right mustapply an

interpretation that will fulfill the broad purpose of the guarantee and thus secure "for individuals the full benefit of the[constitutional] protection": R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 344. "At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the[constitutional provision] was not enacted in a vacuum, and must therefore...be placed in its proper linguistic, philosophic and historicalcontexts": Big M Drug Mart, supra, at p. 344.

This is essentially the approach the Court used in 1939 when the Court examined thehistorical record to determine whether the term "Indians" in s. 91(24) of the British North America Act, 1867 includes the Inuit(Reference as to whether "Indians" in s. 91(24) of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, (SCC), [1939] S.C.R. 104). [18] Applied to this case, this means that we must fulfill -- but not "overshoot" -- the purpose of para. 13 of the NRTA.

We must approach the task of determining whether Métis are included in"Indians" under para. 13 by looking at the historical context, the ordinary meaning of the language used, and the philosophy or objectiveslying behind it.” [16] At para. 37, the Court in Blais referred to the principle that ambiguities should be resolved in favour of Aboriginal peoplesand, in such cases, a generous and liberal

interpretation is to be preferred over a narrow and technical one (the “ambiguity principle”).One of the authorities in support of that principle is R. v. Nowegijick, (SCC), [1983] 1 S.C.R. 29, at p. 36, where thecourt stated: “… Treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.” [17] At paras. 39 and 40 of Blais, the Court referred to the “living tree” principle as a fundamental tenet of constitutionalinterpretation. This doctrine was enunciated by Lord Sankey L. C. in Edwards v.

Attorney-General for Canada, (UKJCPC), [1930] A.C. 124 (P.C.), with reference to the BNA Act. Because of the potential importance of this principle in the case at bar, Iwill quote fully from para. 40 of Blais: “This Court has consistently endorsed the living tree principle as a fundamental tenet of constitutional

interpretation. Constitutionalprovisions are intended to provide "a continuing framework for the legitimate exercise of governmental power": Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145 , per Dickson J. (as he then was), at p. 155. But at the same time, this Court is not free toinvent new obligations foreign to the original purpose of the provision at issue. The analysis must be anchored in the historical context ofthe provision.

As emphasized above, we must heed Dickson J.'s admonition "not to overshoot the actual purpose of the right or freedomin question, but to recall that the Charter was not enacted in a vacuum, and must therefore ... be placed in its proper linguistic,philosophic and historical contexts": Big M Drug Mart, supra, at p. 344; see Côté, supra, at p. 265. Dickson J. was speaking of theCharter, but his words apply equally to the task of interpreting the NRTA. Similarly, Binnie J. emphasized the need for attentiveness tocontext when he noted in R. v.

Marshall, (SCC), [1999] 3 S.C.R. 456, at para. 14, that "'[g]enerous' rules ofinterpretation should not be confused with a vague sense of after-the-fact largesse." Again the statement, made with respect to theinterpretation of a treaty, applies here.” (my emphasis) [18] This reference to Binnie J.’s comment in R. v. Marshall was reiterated by the Supreme Court in Mitchell v. Canada (Ministerof National Revenue- M.N.R.), 2001 SCC 33, at para. 39. [19] In his text, Constitutional Law of Canada, 5th ed. Supplemented, looseleaf, (Toronto: Carswell, 2007), Peter Hogg discusses

the living tree principle within the “doctrine of progressive

interpretation”. At page 15-48, he notes that this doctrine is one of the meansby which the BNA Act has been able to adapt to the changes in Canadian society, in that the words of the Act are continuously adapted tonew conditions and new ideas. However, Professor Hogg specifically links this doctrine with “the general language used to describe theclasses of subjects (or heads of power)” in ss. 91 and 92 of the BNA Act. He notes that, in this context, such language is “not to be frozenin the sense in which it would have been understood in 1867.” [20] Professor Hogg continues on, stating more broadly at page 15-50: “Needless to say, the doctrine of progressive

interpretation does not liberate the courts from the normal constraints of

interpretation.Constitutional language, like the language of other texts, must be “placed in its proper linguistic, philosophical and historical contexts”.Nor is the original understanding (if it can be ascertained) irrelevant. On the contrary, the

interpretation of a constitutional provision“must be anchored in the historical context of the provision”. All that progressive

interpretation insists is that the original understandingis not binding forever. If new inventions, new conditions or new ideas will fairly fit within the constitutional language, contemporarycourts are not constrained to limit their

interpretations to meanings that would have been contemplated in 1867 (or whenever the text wascreated).” [21] In a similar vein, the Northwest Territories Court of Appeal in Yellowknife Public Denominational District EducationAuthority v. Euchner, 2008 NWTCA 13, at paras. 62 and 63, referred to the need for a flexible approach to constitutional

interpretationin order to respond to changing social needs and public expectations, while still giving due consideration to the language actually used bythe constitutional drafters: “A constitution must be capable of responding to changing social needs and legitimate public expectations. Otherwise, what might havebeen suitable for an earlier time and vastly different society would prohibit

interpretations rooted in the reality of the present. And yet oldproblems may invite new solutions and old solutions may not have contemplated new problems. Accordingly, a purposive approach isrequired when interpreting a constitutional document: Edwards v. Attorney-General for Canada, (UK JCPC), [1930]A.C. 124 at 136 (P.C.); Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145 at 155-156; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295 at 344; and Reference re Same-Sex Marriage, 2004 SCC 79 , [2004] 3 S.C.R. 698at 709-711. In addition, if alternate

interpretations are reasonably available, then preference should be given to the

interpretation that bestaccords with constitutional norms and values, including Charter values. That said, the language actually used and stated by the constitutional drafters must be carefully weighed and measured, having regard tothe historical context of the document. A constitutional document "should not be regarded as an empty vessel to be filled with whatevermeaning we might wish from time to time": Reference re Public Service Employee Relations Act (Alta.), (SCC), [1987]1 S.C.R. 313 at 394.

In the context of denominational school rights, as stated by Beetz J. in Greater Montreal Protestant School Board v.Quebec (Attorney General), supra, at 401, "[a]s a constitutional text, s. 93(1) may deserve a 'purposive'

interpretation but, in so doing,courts must not improperly amplify the provision's purpose.” (my emphasis) [22] The case of Reference re Same-Sex Marriage, 2004 SCC 79, cited by the Northwest Territories Court of Appeal above, is anexample of the Supreme Court applying the living tree doctrine. However, the Court characterized it as a “head of power” case and, assuch distinguished it from Blais.

At para. 30 of the Reference, the Court stated: “…it is submitted that the intention of the framers should be determinative in interpreting the scope of the heads of power enumerated inss. 91 and 92 given the decision in R. v. Blais, [2003] 2 S.C.R. 236, 2003 SCC 44. That case considered the interpretive question inrelation to a particular constitutional agreement, as opposed to a head of power which must continually adapt to cover new realities.

It istherefore distinguishable and does not apply here.” (my emphasis) [23] Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, is also a “head of power” case, and the SupremeCourt makes some interesting comments about the need for an evolving

interpretation of the Constitution while giving due regard for theoriginal intent of the drafters. At para. 45, the Court stated: “On the one hand, no constitutional head of power is static. On the other hand, the evolution of society cannot justify changing thenature of a power assigned by the Constitution to either level of government. These two statements are not contradictory. As ProfessorsH. Brun and G. Tremblay write: [TRANSLATION] Ultimately, however, there is no inconsistency between dynamic

interpretation and adherence to the original intent ofthe framers: in order for something to evolve, it must have a starting point. See Reference re Prov. Electoral Boundaries (Sask.), (SCC), [1991] 2 S.C.R. 158, at pp. 180-87. To determine the original intent of the framers, it is obviously necessary to startwith a generous reading of the words they used, taken in their strictly legal context. That context may also be expanded by having regardto elements "extrinsic" to it that are more historical than legal in nature. [Emphasis added.] (Droit constitutionnel (4th ed. 2002), at p.207)” (my emphasis in italics) 3. The Arguments of the Parties

[24] RRDC argues that a proper

interpretation of the relevant provision leads to the conclusion that it was intended to have legalforce and effect and gives rise to obligations capable of being judicially enforced. For the sake of simplicity, I will treat Question #1 asasking whether the relevant provision was intended to be “justiciable”, by which I mean whether it was intended to have enforceablelegal effect reviewable by this Court. RRDC’s statutory

interpretation argument essentially has four components: 1. The “simple reading” or “ordinary meaning” argument; 2. The “larger statutory scheme” argument; 3. The “related legislation” (in pari materia) argument; and 4. The “administrative

interpretation” argument. [25] Canada’s response focuses on the intention of Parliament at the time of the enactment of the relevant provision and reliesheavily on expert evidence about the historical context of the provision. In short, Canada submits that the relevant provision was notintended by the Imperial Parliament to be justiciable, and that the modern principle of statutory

interpretation leads to the conclusion thatthe relevant provision is not justiciable today. [26] Having heard the lengthy and complex arguments put forward by the parties, I feel it is appropriate to say in beginning myanalysis that Question #1 is one of the “hard”, if not “hardest”, cases referred to by Professor Ruth Sullivan above (see para. 12 above).

a) The Statutory

Interpretation Arguments (

i) The “Simple Reading” or “Ordinary Meaning” Argument [27] RRDC argues that the relevant provision of the 1870 Order was given legal effect by s. 146 of the BNA Act, 1867, and that asresult of the application of s. 2 of the Colonial Laws Validity Act, 1865, and the later application of s. 7(1) of the Statute of Westminster,1931 (now the Constitution Act, 1931), the relevant provision has constitutional force and effect. [28] In Summerside (City) v. Maritime Electric Co.

Ltd., 2011 PECA 13, the Prince Edward Island Court of Appeal referred withapproval to what Professor Sullivan noted in her text about the “ordinary meaning” dimension of the modern principle (para. 18): “Sullivan on the Construction of Statutes 5th ed. at pp. 25-26 addresses what is meant by “ordinary meaning.” The author adopts themeaning given to that phrase by Gonthier J. in Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., (SCC),[1993] S.C.J. No. 114; [1993] 3 S.C.R. 724 at 735.

According to the author, Gonthier J. found that “ordinary meaning” is the “naturalmeaning which appears when the provision is simply read through.” [29] RRDC notes that the relevant provision is set out in an Order in Council which was authorized by s. 146 of the BNA Act, andtherefore must be read together with that section, which states: “It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada…to admit Rupert's Land and the North-western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act; and the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland.” (my emphasis) [30] For ease of reference, I will also include here the relevant provisions of the 1870 Order and the 1867 Address.

A copy of the1870 Order in its entirety is available at: www.justice.gc.ca/eng/pi/const/lawreg-loireg/p1t31.html [The 1870 Order] “Whereas by the “British North America Act, 1867,” it was (amongst other things) enacted that it should be lawful for

the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, on Address from the Houses of the Parliament of Canada, to admit Rupert's Land and the North-Western Territory, or either of them, into the Union on such terms and conditions in each case as should be in the Addresses expressed, and as the Queen should think fit to approve, subject to the provisions of the said Act.

And it was further enacted that the provisions of any Order in Council in that behalf should have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland: And whereas by an Address from the Houses of the Parliament of Canada, of which Address a copy is contained in the

Schedule to this Order annexed, marked A, Her Majesty was prayed, by and with the advice of Her Most Honourable Privy Council, to unite Rupert's Land and the North-Western Territory with the Dominion of Canada, and to grant to the Parliament of Canada authority to legislate for their future welfare and good government upon the terms and conditions therein stated: … It is hereby ordered and declared by Her Majesty , by and with the advice of the Privy Council, in pursuance and exercise of the powers vested in Her Majesty by the said Acts of Parliament, that from and after the fifteenth day of July, one thousand eight hundred and seventy, the said North-Western Territory shall be admitted into and become part of the Dominion of Canada upon the terms and conditions set forth in the first hereinbefore recited Address , and that the Parliament of Canada shall from the day aforesaid have full power and authority to legislate for the future welfare and good government of the said Territory…” [The 1867 Address ] “… We, Your Majesty's most dutiful and loyal subjects, the Senate and Commons of the Dominion of Canada, in Parliament assembled, humbly approach your Majesty for the purpose of representing: That it would promote the prosperity of the Canadian people, and conduce to the advantage of the whole Empire, if the Dominion of Canada, constituted under the provisions of the " British North America Act, 1867 ," were extended westward to the shores of the Pacific Ocean.

That the colonization of the fertile lands of the Saskatchewan, the Assiniboine, and the Red River districts; the development of the mineral wealth which abounds in the region of the North-West; and the extension of commercial intercourse through the British possessions in America from the Atlantic to the Pacific, are alike dependent on the establishment of a stable government for the maintenance of law and order in the North-Western Territories.

That the welfare of a sparse and widely scattered population of British subjects of European origin, already inhabiting these remote and unorganized territories, would be materially enhanced by the formation therein of political institutions bearing analogy, as far as circumstances will admit, to those which exist in the several Provinces of this Dominion.

That the 146th

section of the “British North America Act, 1867” provides for the admission of Rupert's Land and the North-Western Territory, or either of them, into union with Canada, upon the terms and conditions to be expressed in addresses from the Houses of Parliament of this Dominion to your Majesty, and which shall be approved of by your Majesty in Council.

That we do therefore most humbly pray that Your Majesty will be graciously pleased, by and with the advice of your Most Honourable Privy Council, to unite Rupert's Land and the North-Western Territory with this Dominion, and to grant to the Parliament of Canada authority to legislate for their future welfare and good Government; and we most humbly beg to express to Your Majesty that we are willing to assume the duties and obligations of government and legislation as regards these territories.

That in the event of Your Majesty's Government agreeing to transfer to Canada the jurisdiction and control over the said region, the Government and Parliament of Canada will be ready to provide that the legal rights of any corporation, company, or individual within the same shall be respected, and placed under the protection of Courts of competent jurisdiction.

And furthermore, that, upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines.

All which we humbly pray Your Majesty to take into Your Majesty's most gracious and favorable consideration. …” (my emphasis) [ 31 ] RRDC argues that the relevant provision is one of the “terms and conditions” that the 1870 Ord er incorporated and that s. 146 confirms that the provision had effect “as if… enacted by the [ Imperial ] Parliament …” . [ 32 ] Further, because of s. 2 of the Colonial Laws Validity Act , 1865 and s. 7 (1) of The Statute of Westminster , the Government of Canada was not competent to enact laws inconsistent with Imperial legislation applicable to Canada .

These sections respectively read: “2. Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to

the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.” and “7(1) Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to1930, or any order, rule or regulation made there-under.” [33] Finally, because the 1870 Order is part of the Constitution Act, 1982, as one of the orders identified in the

schedule attachedto that Act and referenced under s. 52(1)(c), it continues to have constitutional and justiciable effect today. [34] The linkage between these various provisions is helpfully summarized by the Federal Court of Appeal in Singh v. Canada(A.G.), (FCA), [2000] 3 F.C. 185, at para. 15: “…[T]he supremacy of the Constitution was established well before 1982 and even before Confederation in 1867. Canada recognized theBritish Parliament as the proper authority for enactment of our Constitution down to and including 1982 when

section 52 of theConstitution Act, 1982 was adopted. It was a legal doctrine of the British Empire that imperial laws (that is, enactments of Westminster) applying to a colony were supreme over colonial laws. This position was codified by statute, the Colonial Laws Validity Act, 186515,section 2 of which provided that: 2. Any colonial law, which is or shall be repugnant to the provisions of any Act of Parliament extending to the colony to which such lawsmay relate ... shall be read subject to such Act ... and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutelyvoid and inoperative.

The British North America Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5]], was an imperial law extending tothe colony of Canada and its supremacy was thus assured as long as Westminster was the recognized legislative authority for Canada inconstitutional matters. While ordinary Canadian laws were freed from the application of the Colonial Laws Validity Act, 1865, and thusfrom the paramountcy of British laws, by the Statute of Westminster, 1931, the latter statute preserved the supremacy in Canada of theB.N.A. Acts over local laws.

It is no accident that a new supremacy clause was inserted in subsection 52(1) of the Constitution Act, 1982.Subsection 52(2) of that Act partially defines the Constitution of Canada to include the legislation listed in the

Schedule to the Act. TheColonial Laws Validity Act, 1865 is not so listed. To avoid any uncertainty as to the continuing supremacy of the Constitution it wastherefore necessary to insert subsection 52(1) to provide that: 52.

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitutionis, to the extent of the inconsistency, of no force or effect.” [35] Canada admits that the 1870 Order (and thus the relevant provision) is part of the Constitution of Canada and that theconstitutional effect of the relevant provision, if any, is subject to

interpretation by this Court. However, Canada argues that RRDC’sinterpretation of the relevant provision essentially ignores the legislative intent and historical context that are necessary for the properapplication of the modern principle. Canada submits that, when those dimensions of the modern principle are given their due weight,there can be no question that the relevant provision was not intended to be justiciable either in 1870 or today. (ii) The Larger Statutory Scheme Argument [36] RRDC argues that since the 1870 Order is part of the larger Constitutional scheme, the principle of

interpretation thatpresumes harmony, coherence and consistency between statutes dealing with the same subject matter leads to the conclusion that therelevant provision was intended to have the same legal force and effect as the rest of the Constitution. This principle is set out in BellExpressVu, cited above, at paras. 26 and 27: “In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical

and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory

interpretation across a wide range of interpretive settings… The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of astatute: as Professor John Willis incisively noted in his seminal

article "Statute

Interpretation in a Nutshell" (1938), 16 Can. Bar Rev. 1,at p. 6, "words, like people, take their colour from their surroundings". This being the case, where the provision under consideration isfound in

an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Actare more expansive. In such an instance, the application of Driedger's principle gives rise to what was described in R. v. UlybelEnterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as "the principle of

interpretation that presumes a harmony, coherence,and consistency between statutes dealing with the same subject matter…” [37] Canada argues that there are many different provisions of the Constitution that serve a variety of purposes and were intendedto have different effects. For example, Canada points to s. 91(24) of the BNA Act, which confers jurisdiction over “Indians and landsreserved for the Indians” to the federal Parliament. This

section does not require Parliament to take any steps to exercise that jurisdiction,and indeed, the same could be said of the other heads of power under s. 91. [38] It is also trite to observe that not all of the provisions in the 1870 Order were intended to be justiciable.

I understood RRDC'scounsel to concede that this is the case for the majority of the provisions in the Order, many of which are duplicative and werepresumably included for the sake of completeness, and to ensure that all of the matters pertinent to the transfer of the two territories andthe surrender by the Hudson’s Bay Company were referenced. [39] Thus, once it is accepted that some parts of the 1870 Order and the Constitution are not justiciable, the argument that therelevant provision is justiciable simply because it is part of the 1870 Order becomes less persuasive.

Rather, it seems to me that oneneeds to examine each provision individually, using the modern principle of statutory

interpretation, in order to determine whether it hasforce and effect. Since such an analysis involves an examination of legislative intent and historical context, some evidence is required.On the evidence put before me, the conclusion I come to below is that the relevant provision was not intended to be justiciable.

RRDC’sargument about the larger statutory scheme does little to cause me to re-examine this conclusion. (iii) Other Statutes Dealing with the Same or Related Subject Matter (“in pari materia”) [40] The primary legal instrument which RRDC relies upon for this portion of its argument is the Royal Proclamation of 1763,which it says must be read together with the 1870 Order. The import of this legal instrument is summarized by the Supreme Court ofCanada in Guerin v.

Canada, (SCC), [1984] 2 S.C.R. 335, at para. 99 (Q.L.): “The Royal Proclamation of 1763 provided that no private person could purchase from the Indians any lands that the Proclamation hadreserved to them, and provided further that all purchases had to be by and in the name of the Crown, in a public assembly of the Indiansheld by the governor or commander-in-chief of the colony in which the lands in question lay.

As Lord Watson pointed out in St.Catherine's Milling, supra, at p. 54, this policy with respect to the sale or transfer of the Indians' interest in land has been continuouslymaintained by the British Crown, by the governments of the colonies when they became responsible for the administration of Indianaffairs, and, after 1867, by the federal government of Canada.

Successive federal statutes, predecessors to the present Indian Act, have allprovided for the general inalienability of Indian reserve land except upon surrender to the Crown, the relevant provisions in the presentAct being ss. 37-41.” [41] In his text, Natural Resources and Public Property under the Canadian Constitution (Toronto: University of Toronto Press,1969), Gerard La Forest, Q.C. (as he then was) helpfully summarized the essential provisions of the Royal Proclamation at page 110: “In

summary the Proclamation makes the following provisions regarding the lands it reserves for Indians: the Indians are not to bemolested or disturbed in their possession of such lands; the various colonial governors are not to give grants of such lands; privateindividuals are not to purchase lands from the Indians; if any persons have settled on such lands, they are to leave them; and if theIndians wish to dispose of such lands, they may only be purchased in the king's name [as written] after a meeting of the Indians for thatpurpose has been held by the governor of the colony where the land is located (or in a proprietary government, in the name of theproprietaries in accordance with the directions of the king or the proprietary).”

[42] In Calder v. Attorney-General of British Columbia, (SCC), [1973] S.C.R. 313, Laskin J., concurring with HallJ., at p. 394, said this about the Royal Proclamation: “…This Proclamation was an Executive Order having the force and effect of

an Act of Parliament and was described by Gwynne J. in St.Catherines Milling case at p. 652 as the "Indian Bill of Rights". Its force as a statute is analogous to the status of Magna Carta which hasalways been considered to be the law throughout the Empire. It was a law which followed the flag as England assumed jurisdiction over newly-discovered or acquired lands or territories.... In respect of this Proclamation, it can be said that when other exploring nations were showing a ruthless disregard of native rightsEngland adopted a remarkably enlightened attitude towards the Indians of North America.

The Proclamation must be regarded as afundamental document upon which any just determination of original rights rests…” [43] In Chippewas of Sarnia Band v. Canada (Attorney General), (ON CA), [2001] 1 C.N.L.R. 56, the OntarioCourt of Appeal referred to the Royal Proclamation as “an expression of the royal prerogative” (para.186). Interestingly, Chippewas is acase where Canada’s expert witness in the case at bar, Dr. McHugh, similarly testified as an expert for the Crown. In the present case,Dr.

McHugh was cross-examined about certain passages in Chippewas relating to the import and effect of the Royal Proclamation. Forexample, his attention was drawn to para. 198, where it was stated: “…little turns in this case on whether the surrender provisions per se of the Royal Proclamation had the force of law in 1839.

We havefound that those responsible for the First Nations relations after 1776 continued to follow the central policies underlying the RoyalProclamation and developed protocols for the conduct of meetings to which formalities the First Nations and the Crown representativeattached considerable importance. We have also found that at the relevant time such surrender procedures were in place, that it wasunderstood by all parties that they were a first step towards making the lands in question available for settlement, that the proceduresshould have been followed and they were not followed.” [44] Dr.

McHugh agreed with these statements. However, later in his cross-examination, he qualified his agreement with otherportions of the Chippewas decision. For example, the Court of Appeal noted, at para. 201, that the Royal Proclamation “has beenconsistently cited in the case law from the earliest times as the defining source of the principles governing the Crown in its dealings withthe Aboriginal people of Canada.” Dr. McHugh and RRDC’s counsel had the following exchange about that quotation: “Q Okay, thank you.

And do you agree that as the Court of Appeal found, the Royal Proclamation has been, I’m quoting here: … has been consistently cited in the case law from the earliest times as the defining source of the principles governing the Crown in itsdealing with the Aboriginal people of Canada. A I think that’s a very broad open-ended sentence that, in terms of legal history, needs considerable more detailing, which the Courtis not doing there. Q So you don’t agree that the proclamation has been cited as the defining source of the principles?

A It's not a question of my disagreeing or agreeing so much as recognizing that that is a statement that needs considerable --considerable texturing. Q Would you agree -- I don’t -- we don’t have time – A For example, "It has been consistently cited in the case law from the earliest times…." Well, if one looks at the pathways, okay,that suggests that there is a consistent body of jurisprudence, of case law. There isn’t. There is only a sprinkling of cases which refer tothe Royal Proclamation, and then in a variety of ways.

So that is a court judgment; it’s not an historical account of how the RoyalProclamation was viewed at any given time within Canada, because the Royal Proclamation is a legal instrument with a history ofinterpretation…”[3] [45] Dr. McHugh continued to opine about the Court of Appeal’s passage as follows: “Q The Court clearly concluded that the principles and the proclamation should have been followed and weren’t.

A Well, the word is principles. Q Yes. A Principles are not rules. Principles -- you see, we’re getting into an argument here about -- I’m resisting the suggestion that you’re making it historically. There was a perception that they were externally enforceable standards that could be brought to bear against the Crown for the conduct of its relations with First Nations.

That is a suggestion you are making, it seems to me, and that I’m resisting, in the period that we’re looking at, because historically there was no perception that there were externally enforceable standards that could be brought to bear against the Crown. That is not occurring historically. Now, if we fast forward a hundred years.-- [4] [ 46 ] It should also be noted that, the Royal Proclamation was referred to in Guerin as a “policy ” with respect to the sale or transfer of the First Nations interest in land . [5] [ 47 ] RRDC submits that , in accordance with the principle of

interpretation that presumes harmony , coherence and consistency between statutes dealing with the same subject matter , the 1870 Order must have been intended , like the Royal Proclamation of 1763 , to have legal force and effect and give rise to enforceable obligations . However , the evidence of Dr.

McHugh on this point , which I discuss below and find to be credible , casts doubt on the current justiciability of the Royal Proclamation , notwithstanding its inclusion in the Constitution of Canada , at s. 25 . [ 48 ] The other enactments relied upon by RRDC as being closely related to the relevant provision in the 1870 Order are: 1. The Temporary Government of Rupert 's Land Act , ( 1869 ), 32 -33 Victoria, c. 3 (Canada) ; 2. The Dominion Lands Act of 1872 (S.C. 1872, c. 23); 3. The Orders in Council of 1875, disallowing certain land legislation in the province of British Columbia ; and 4.

The Ontario and Québec Boundaries Extension Acts of 1912 . [ 49 ] The Canadian Parliament enacted the Temporary Government of Rupert’s Land Act in 1869, when it appeared probable that Rupert’s Land and the North-western Territory were going to be transferred to Canada.

Section 5 of that Act states: “All the Laws in force in Rupert’s Land and the North-Western Territory, at the time of their admission into the Union, shall so far as they are consistent with “the British North America Act, 1867 ,”- with the terms and conditions of such admission approved of by the Queen under the 146 th

section thereof, - and with this Act, - remain in force until altered by the Parliament of Canada, or by the Lieutenant Governor under the authority of this Act.” RRDC argues that the Canadian Parliament ’s recognition that the laws in the two territories would only remain in force insofar as they were “consistent with …the terms and conditions ” of their admission as approved by the Queen under s. 146 is support for the view that the terms and conditions of admission so approved were understood to have constitutional force and effect .

I agree that the “terms and conditions ” of the admission of the territories into the Dominion of Canada did , by virtue of s. 146 of the BNA Act , become part of the Constitution of Canada . However , although it is necessary for a provision to be part of the Constitution in order for it to have constitutional effect , its mere inclusion is not sufficient to conclude that it has justiciable constitutional effect . [ 50 ]

Section 42 of the Dominion Lands Act of 1872 stated : “None of the provisions of this Act respecting the settlement of agricultural lands, or the lease of timber lands, or the purchase and sale of mineral lands, shall be held to apply to territory the Indian title to which shall not at the time have been extinguished.” This legislation was enacted in 1872 , about two years after the acquisition of the two territories under the 1870 Order .

RRDC argues that s. 42 supports the view that the Canadian government understood that the extinguishment of Aboriginal title was required before lands acquired under the 1870 Order could be available for settlement , agriculture , forestry or m ining. RRDC further argues that this legislation helps to explain why the Canadian government embarked on the post -Confederation treaty process shortly after acquiring the two territories . [ 51 ] As Canada's counsel properly points out , it is difficult to compare another statutory instrument with the one at issue , without

also doing a statutory

interpretation analysis of that other statutory instrument pursuant to the modern principle . That , in turn , involves more than simply looking at the words of the statutory instrument. It requires an analysis of the entire context of the statutory instrument , including the aspects of legislative intent and historical context . I have little or no evidence to pursue such an analysis with respect to s. 42 of the Dominion Lands Act . What evidence there is comes from Dr.

McHugh , and he disagreed with the suggestion by RRDC ’s counsel that s. 42 can be seen as evidence of the Parliament of Canada ’s understanding of the duties it undertook in 1870 Order . Rather , Dr. McHugh referred to s. 42 as a “prophylactic ” provision preventing a particular class of land (i.e. that to which Indian title had not yet been extinguished ) from coming under the “fairly rigorous regime ” for the management of public lands . While Dr.

McHugh agreed that the provision was consistent with the executive’s “protection function ” with respect to lands still subject to Indian title (to be discussed further below), he did not agree that the provision rendered the extinguishment processes justiciable . [6] [ 52 ] RRDC ’s counsel argued that that Dr. McHugh ’s expert opinion on the

interpretation of the Dominion Lands Act should be ruled inadmissible on the principle that expert evidence should not be allowed on domestic legislation .

However , I can hardly give weight to this submission when it was RRDC ’s counsel who elicited this evidence in cross-examination . [ 53 ] RRDC also relied upon an Order in Council , dated January 23, 1875 , by which the federal Cab inet accepted the recommendation of the Minister and Deputy Minister of Justice that “ An Act to Amend and Consolidate the Laws Affecting Crown Lands in British Columbia ”, which had been enacted by the provincial Legislature , be disallowed on the grounds that it failed to respect the rights of the Indians in that province.

The relevant passages of the Report of the Minister and Deputy Minister of Justice for Canada to the Governor Gen eral, dated January 19, 1875 , are as follows : “The undersigned believes that he is correct in stating that with one slight exception as to land in Vancouver Island surrendered to the Hudson Bay Company, which makes the absence of others the more remarkable, no surrender of lands in that province have ever been obtained from the Indian tribes inhabiting it, and that any reservations which have been made, have been arbitrary on the part of the government, and without the assent of the Indians themselves, and though the policy of obtaining surrenders at this lapse of time and under the altered circumstances of the province, may be questionable, yet the undersigned feels it his duty to assert such a legal or equitable claim as may be found to exist on the part of the Indians.

There is not a shadow of doubt that from the earliest times, England has always felt it imperative to meet the Indians in council and to obtain surrenders of tracts of Canada, as from time to time such were required for purposes of settlement. ”(emphasis added) [ 54 ] Then, after quoting at considerable length the provisions of the Royal Proclamation of 1763 relating to Indian lands, the Minister of Justice went on to write that: “It is not necessary now to inquire whether the lands west of the Rocky Mountains and bordering on the Pacific Ocean, form part of the lands claimed by France and which if such claim were correct, would have passed by cession to England under the treaty of 1763, or whether the title of England rests on any other ground, nor is it necessary to consider whether that proclamation covered the land now known as

British Columbia.

It is sufficient, for the present purposes, to ascertain the policy of England in respect to the acquisition of the Indian territorial rights, and how entirely that policy has been followed to the present time, except in the instance of British Columbia . … The determination of England as expressed in the proclamation of 1763, that the Indians should not be molested in the possession of such parts of the Dominion and Territories of England as, not having been ceded to the King, and reserved to them, and which extended also to the prohibition of purchase of lands from the Indians, except only to the Crown itself – at a public meeting or assembly of the said Indians to be held by the governor or commander-in-chief - has, with slight alterations, been continued down to the present time either by the settled policy of Canada, or by legislative provision of Canada to that effect, and it may be mentioned that in furtherance of that policy, so lately as in the year 1874, treaties were made with various tribes of Indians in the North-west Territories , and large tracts of land lying between the Province of Manitoba and the Rocky Mountains were ceded and surrendered to the Crown, upon conditions of which the reservation of large tracts for the Indians, and the granting of annuities and gifts annually, formed important consideration…” (my emphasis) [ 55 ] RRDC argues that the foregoing is evidence that the decision by the Government of Canada to disallow British Columbia ’s land legislation was made on the grounds that it failed to respect “the legal or equitable rights ” of the Indians in that province, as well as “the policy of England in respect to the acquisition of the Indians territorial rights ”, as expressed by the Royal Proclamation of 1763 .

RRDC further argues that this is consistent with its view that the relevant provision in the 1870 Order was intended to be justiciable . [ 56 ] Once again , I am troubled about the relative lack of evidence , apart from the Report just referred to , regarding the historical context of the 1875 Order in Council . [ 57 ] Further , there were contrary views expressed by Dr. McHugh in cross-examination .

For example , he emphasized that the two law officers referred to “such legal or equitable claim as may be found to exist on the part of the Indians . ” He also highlighted the repeated use of the word “policy ” with respect to the extinguishment of Aboriginal title , which suggests it was a matter exclusively within the Crown prerogative.

He further noted that , notwithstanding the language used by the two law officers , there was no pattern of matters of Aboriginal title being enforced in courts at that time and that this particular Report was “not indicative of a general understanding ” in that regard . [7] Finally , Dr. McHugh opined that the eventual exercise of the power of disallowance under s. 90 of the

BNA Act by the Government of Canada was entirely consistent with his views, discussed below, about the “protective duty assumed bythe Dominion” under the 1870 Order.[8] [58] Canada’s counsel underscored these points by noting that the government chose to use the “political tool” of disallowancerather than seeking a judicial remedy in court. [59] RRDC also relies upon the Boundaries Extension Acts of 1912, whereby the Canadian government transferred to Québec andOntario certain parts of Rupert’s Land that had been transferred to Canada under the 1870 Order. RRDC’s counsel advises me that thetwo Acts are virtually identical.

Section 2(

c) of the Québec Boundaries Extension Act, 1912 provides that the extension of the boundariesof the province was made subject to the following condition: “That the province of Quebec will recognize the rights of the Indian inhabitants in the territory above described to the same extent, and will obtain surrenders of such rights in the same manner, as the Government of Canada has heretofore recognized such rights and has obtained surrender thereof, and the said province shall bear and satisfy all charges and expenditures in connection with or arising out of such surrenders.” [60] The meaning of this provision was considered in Kanatewat v.

James Bay Development Corporation, [1973] Q.J. No. 8 (S.C.).In that case, the Cree and Inuit of northern Québec petitioned the Québec Superior Court for an injunction to halt the construction of theJames Bay hydroelectric project. The petitioners were successful, and an interlocutory injunction was granted on November 15, 1973.On November 21, 1973, six days later, the Québec Court of Appeal allowed an appeal on the basis of the “balance of convenience”aspect of the test for an interlocutory injunction (Kanatewat v. James Bay Development Corporation, [1974], Q.J.

No. 14).[9] TheSupreme Court of Canada subsequently granted leave to appeal. However, that appeal became moot and was discontinued as result ofthe conclusion of The James Bay and Northern Québec Agreement in November 1975, which was effectively a land claim agreementwith the Cree and Inuit. [61] RRDC places great reliance on the trial judgment of Mr. Justice Malouf.

At para. 63, Malouf J. stated: “This legislation clearly shows that the Province of Quebec agreed to recognize the rights of the Indian inhabitants in the territorydescribed in the said Act to the same extent and also agreed to obtain surrender of such rights in the same manner that the Government ofCanada had prior thereto recognized such rights and obtained surrender thereof.

This obligation is a clear and a precise one…” (myemphasis) [62] Malouf J. then went on to discuss the pre-Confederation period of Canada and the impact of the Royal Proclamation of 1763.At para. 83 he referenced the relevant provision in the 1870 Order: “The Orders in Council, Resolutions, Addresses and Legislation referred to, all clearly show that the authorities therein mentionedrecognized that the Indians had a right and title to the land.

When the Imperial Crown transferred Rupert's Land to Canada, the CanadianGovernment undertook to settle the claims of Indian tribes to compensation for lands required for the purposes of settlement inconformity with equitable principles. In order to give effect to this undertaking, the Government of Canada entered into treaties with theIndians whenever it desired to obtain lands for purposes of settlement.

When the Canadian Government decided to extend the boundariesof the Provinces of Quebec and Ontario to include additional portions of Rupert's Land it obliged the Provinces of Quebec and Ontario toassume similar obligations towards the Indians…” (my emphasis) [63] Malouf J. then concluded, at para.107: “…It has been shown that the Government of Canada entered into treaties with Indians whenever it desired to obtain lands for thepurposes of settlement or otherwise.

In view of the obligation assumed by the Province of Quebec in the Legislation of 1912 it appearsthat the Province of Quebec cannot develop or otherwise open up these lands for settlement without acting in the same manner that is,without the prior agreement of the Indians and Eskimo.” (my emphasis) [64] Notwithstanding that the decision of Malouf J. was overturned by the Québec Court of Appeal, RRDC’s counsel stressed thatthe ratio of the Court of Appeal decision was on the issue of the balance of convenience.

I take counsel’s word on that, as only two of thefive opinions in the case report are produced in English and I regrettably am unable to read those in French. Further, RRDC’s counselargued that the spirit of Malouf J.'s reasoning was later vindicated by the Supreme Court of Canada in R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075, where Dickson C.J. and LaForest J., stated, at paras. 49 and 50 (Q.L.):

“It is worth recalling that while British policy towards the native population was based on respect for their right to occupy theirtraditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt thatsovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown.; see Johnson v. M'Intosh (1823), 8Wheaton 543 (U.S.S.C.); see also the Royal Proclamation itself (R.S.C., 1985, App. II, No. 1, pp. 4-6); Calder, supra, per Judson J., at p.328, Hall J., at pp. 383 and 402.

And there can be no doubt that over the years the rights of the Indians were often honoured in the breach(for one instance in a recent case in this Court, see Canadian Pacific Ltd. v. Paul, (SCC), [1988] 2 S.C.R. 654. AsMacDonald J. stated in Pasco v. Canadian National Railway Co., (BC SC), [1986] 1 C.N.L.R. 35 (B.C.S.C.), at p. 37:"We cannot recount with much pride the treatment accorded to the native people of this country." For many years, the rights of the Indians to their Aboriginal lands -- certainly as legal rights -- were virtually ignored.

The leading casesdefining Indian rights in the early part of the century were directed at claims supported by the Royal Proclamation or other legalinstruments, and even these cases were essentially concerned with settling legislative jurisdiction or the rights of commercial enterprises.For fifty years after the publication of Clement's The Law of the Canadian Constitution (3rd ed. 1916), there was a virtual absence ofdiscussion of any kind of Indian rights to land even in academic literature. By the late 1960s, Aboriginal claims were not even recognizedby the federal government as having any legal status.

Thus the Statement of the Government of Canada on Indian Policy (1969),although well meaning, contained the assertion (at p. 11) that "Aboriginal claims to land ... are so general and undefined that it is notrealistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to the Indiansas members of the Canadian community".

In the same general period, the James Bay development by Quebec Hydro was originallyinitiated without regard to the rights of the Indians who lived there, even though these were expressly protected by a constitutionalinstrument; see The Quebec Boundaries Extension Act, 1912, S.C. 1912, c. 45. It took a number of judicial decisions and notably theCalder case in this Court (1973) to prompt a reassessment of the position being taken by government.” (my underlining) [65] RRDC argues that s. 2 (

c) of the Québec Boundaries Extension Act shows that Parliament understood that the terms on whichCanada had acquired Rupert’s Land and the North-western Territory legally obligated Canada to respect the rights of the Indianinhabitants of those lands and obtain surrenders of any lands required for the purposes of settlement, in the manner set out in the RoyalProclamation.

Further, just as the rights of the Indian inhabitants of northern Québec were constitutionally protected, so too are the rightsof the Indians in Yukon under the terms of the 1870 Order. [66] Canada’s response to this argument is as follows: Firstly, Canada submits that there is little or no evidence about thelegislative intent or historical context surrounding the enactment of the Québec Boundaries Extension Act. For example, it is immediatelyapparent that s. 2(

c) uses the word “will” in two key respects, i.e. “will recognize the rights of the Indian inhabitants” and “will obtainsurrenders of such rights”. Dr.

McHugh opined that it is important to look closely at the terminology used in such legislation andemphasized the distinction between what a government “will do” and what it “shall do”.[10] The former terminology, he said, is moreconsistent with an acceptance of duty under the executive prerogative, and the latter is more consistent with justiciable rights. [67] Secondly, Canada’s counsel submitted that this legislation was enacted 42 years after the 1870 Order, at a time when theconcept of Aboriginal “rights”, in a justiciable sense, was starting to emerge in the Canadian legal context.

However, notwithstandingthat, the judges on the Québec Court of Appeal in Kanatewat, as late as 1973, made comments indicating scepticism about thejusticiability of Aboriginal rights and title. To quote the English decisions in Kanatewat, Owen J.A. stated, at paras. 20 and 24: “The claims made on behalf of Respondents are not at all clear as to the nature of the rights which are invoked as justification for theinterlocutory injunction sought.

These rights are at different times referred to in different terms such as hunting, trapping and fishingrights, personal and usufructuary rights, a right to exclusive use and occupation of the territory, or real rights. They are claimed over aterritory varying from all of Northern Quebec to the area contemplated by Bill 50.

From the point of view of time the claims vary fromone that they have been exercised "since prehistorical times" to one that they were created in 1912. … Putting matters in their most favourable light from the point of view of Respondents I would say that, at this stage, their alleged rights arenot clear, and that accordingly it is necessary to consider the balance of convenience and inconvenience as between the parties indeciding whether an interlocutory injunction should be granted.” [68] Further, Kaufman, J.A., said this at para. 220: “As Mr.

Justice Owen points out, rights are either clear, or doubtful, or non-existent. Here, the rights invoked by the Respondents are farfrom clear, and indeed there is serious doubt about the existence of any right or title which might give rise to the relief claimed - a factwhich clearly emerges from the notes prepared by Mr.

Justice Turgeon.” [69] Finally, with respect to the Supreme Court’s comment about the Québec Boundaries Extension Act in Sparrow, Canada’scounsel submits that the Court was clearly deciding the case in the modern era of Aboriginal law, by which time ss. 25 and 35 of theConstitution Act, 1982 had been enacted, and a host of interpretive principles specific to the sui generis nature of Aboriginal law werestarting to take hold.

[ 70 ] I generally agree with Canada’s position in this regard. I would add that there does not appear to have been the type of evidence before Malouf J. in Kanatewat that I have here on the intention of Parliament at the time of the enactment of the Québec Boundaries Extension Act . Further, the wording of s. 2(

c) of that Act , is more clear (e.g. the reference to Indian “rights”) than the comparatively “loose and general language” used in the relevant provision: see Euchner , cited above, at para. 78 . Thus, I conclude that the probative value of the Boundaries Extension Act to the question of the justiciability of the relevant provision in 1870 Order is significantly less than what was suggested by RRDC ’s counsel . (iv) Administrative

Interpretation [ 71 ] In this part of its argument, RRDC focuses on the post -Confederation treaty process that Canada entered into following the 1870 Order. It submits that the principle of

interpretation that administrative policy and

interpretation are entitled to weight in a statutory

interpretation analysis makes relevant the executive acts undertaken by the Government of Canada in the treaty process . Professor Ruth Su llivan, at page 621 of Sullivan on the Construction of Statutes , discusses th is principl e: “Administrative

interpretation is the

interpretation given to legislation after it has been enacted by persons , other than judges , who are charged with the administration or enforcement of legislation . ” At pages 62 6-627, Professor Sullivan quotes from Di ckson J. ( as he then was ) in Nowegijick , cited above : “Administrative policy and

interpretation are not determinative but are entitled to weight and can be an “important factor ” in case of doubt about the meaning of legislation . ” This principle was also applied in Winnipeg Airports Authority Inc. v. Ellis Don Corp . , 2010 MBQB 259 , at paras. 32 and 33 . [ 72 ] RRDC essentially adopts what Malouf J. said in Kanatewat , at para. 89 : “… In order to open up the land for settlement or otherwise make use of the land, the Government of Canada recognized that it was necessary to obtain the consent of the Indians and this consent was obtained through treaties.

How else can these treaties be interpreted? If the Indians had no title to the land, why were all these treaties with the various tribes concerning territory in various areas of the country entered into.

It is quite clear that in order to extinguish the Indian right, title and interest in the land, the Canadian Government found it necessary to enter into treaties with the Indians and furthermore that their title to the land was at the very least a personal and usufructuary one including rights of hunting, fishing and trapping.” In other words , submits RRDC 's counsel, the Government of Canada’s negotiation of treaties in the west and northwest , virtually on the heels of the enactment of the 1870 Order , must be viewed as evidence of Canada’s recognition that it had a legal , and therefore justiciable , obligation to do so before opening up the lands for settlement . [ 73 ] Canada’s response to this argument is as follows : First, it submits that there is no evidence explaining why the Canadian government embarked on the post -Confederation treaty process shortly after acquiring Rupert ’s Land and the North -western Territory .

Canada argues that the intention of the Canadian government in entering into post-Confederation treaties cannot be inferred, and that specific evidence needs to be presented to establish that the treaties flowed from the 1870 Order . [ 74 ] Second , Canada’s counsel points to a number of examples from the documentation in evidence where land was opened up for settlement without obtaining any surrenders from the Indians concerned .

For example , in the Report from the Select Committe e on Aborigines ( British Settlements ), G.B.P.P. 1837, #425, there is evidence of a blacksmith using coal from a seam near Fort Edmonton , evidence of “cultivation ” near Fort Cumberland and Fort Norman , and evidence of domestic cattle at “most forts ” , at a time before the negotiation of treaties in those areas. [ 75 ] Third, Canada relies upon testimony from Dr. McHugh that the treaty negotiation process was underway prior to the 1870 Order . As examples , he cited the 1858 Robinson Treaty , and the 1862 Manitoba Treaty . [11] Dr.

McHugh said that the effect of Imperial legislation in the 1860s was to transfer the locus of the “protective duty ” from the Imperial Government in London to Canada , so that Canada assumed the authority to manage relations with the Indians. In other words , the post- Confederation treaties were not negotiated out of any sense of legal or justiciable obligation on the part of the federal government , but rather the negotiations reflected a continuation of the Crown’s conception of a high political trust and sense of honour to treat. At the time the 1870 Order was enacted , said Dr.

McHugh, the Government of Canada would not have feared the risk of court action by the Indians , in the event it open ed up land for settlement without negotiating treaties . [ 76 ] Finally , Canada points to the recent decisions of the Supreme Court in H aida Nation v. British Columbia ( Minister of Forests ) , 2004 SCC 73 and Taku River Tlingit First Nation v. British Columbia ( Project Assessment Director ) , 2004 SCC 74 .

In both cases , submits Canada , the Supreme Court held that the federal government was not prohibited from taking steps to manage the lands at issue prior to treaties being completed , for example, through issuing forest licenses or approvals for mining development . In particular , in Haida , at paras. 26 and 27 , the Court wrote : “ Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants' inherent rights. But proving rights may take time, sometimes a very long time.

In the meantime, how are the interests under discussion to be treated? Underlying this question is the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty. Is the Crown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof and resolution of the Aboriginal claim? Or must it adjust its conduct to reflect the as yet unresolved rights claimed by the

Aboriginal claimants? The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution.

But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.” (my emphasis) [ 77 ] I generally agree with Canada’s submissions on this point.

While there may be a certain appealing logic to RRDC’s argument here, it is still largely a conclusory one.

b) Canada ’s Evidence of Parliamentary Intention and Historical Context [ 78 ] Dr. McHugh is a “University Reader- in- Law ” at the University of Cambridge , and has been so designated since 2004 . He has been a teaching member of the Faculty of Law , Cambridge , since 1986 . He obtained his LL.B. ( Honours ) , First Class , from Victoria University , in Wellington , New Zealand , in 1980 . He then obtained his LL.M. from the University of Saskatchewan in 1981 , having completed a thesis entitled “ The Management of Native Lands in Canada and New Zealand : A Comparison ”.

He subsequently obtained his Ph.D. from Cambridge in 1988, where he presently teaches constitutional law and property law . His curriculum vitae lists some 44 publications, including one in 1998 entitled “ The Common Law Status of Colonies and Aboriginal Rights ”: How Lawyers and Historians Treat the Past ”. [12] He is also credited with having published four short monographs and has authored numerous academic essays including one , also from 1998 , entitled “ Aboriginal Identity and Relations in North America and Australasia ”. [13] [ 79 ] As I understand it , Dr. McHugh has published a total of four books .

T he most recent is entitled “ Aboriginal Title ” , published September 5, 2011 , by Oxford University Press. In 2004 he authored the text “ Aboriginal Societies and the Common Law : A History of Sovereignty , Status and Self- Determination ”. He has been the recipient of some seven awards for publications and contributions to legal education . [ 80 ] In the past five years , Dr. McHugh has been retained as an independent expert for the New Zealand Ministry of Justice , the Province of British Columbia and Justice Canada .

He has appeared before a Parliamentary Select Committee in New Zealand in 2004 and the Waitangi Tribunal in that count

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