Court File No. 36983

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) BETWEEN: WILLIAMS LAKE INDIAN BAND Appellant (Respondent) - and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA (As represented by the Minister of Aboriginal Affairs and Northern Development Canada) Respondent (Applicant) - and -

SPECIFIC CLAIMS TRIBUNAL; ASSEMBLY OF MANITOBA CHIEFS; FEDERATION OF SOVEREIGN INDIGENOUS NATIONS; INDIGENOUS BAR ASSOCIATION IN CANADA; ASSEMBLY OF ; UNION OF INDIAN CHIEFS, NLAKA'PANUXNLAKA’PANUX NATION TRIBAL COUNCIL, STO:LOSTÓ:LO NATION, STO:LOSTÓ:LO TRIBAL COUNCIL AND THE CARRIER SEKANI TRIBAL COUNCIL (jointly); ASSEMBLY OF FIRST NATIONS OF QUEBEC AND LABRADOR;LABRADOR; COWICHAN TRIBES, THE STZ'UMINUSSTZ’UMINUS FIRST NATION, THE TRIBE AND THE (jointly) Interveners

FACTUM OF THE INTERVENERS COWICHAN TRIBES, THE STZ'UMINUSSTZ’UMINUS FIRST NATION, THE PENELAKUT TRIBE AND THE HALALT FIRST NATION (jointly)(jointly)

David M. Rosenberg, Q.C. Guy RegimbaldRégimbald ROSENBERG KOSAKOSKI LLP GOWLING WLG (CANADA) LLP 671D Market Hill 160 Elgin Street Vancouver, BC V5Z 4B5 Suite 2600 Tel: 604604-879-4506-879-4506 Ottawa, ON K11K1P3 1C3 Fax: 604-879-49254604-879-49254 Tel: 613613-786-0197-786-0197 Email: [email protected] Fax: 613613-563-9869-563-9869 David M. Robbins Email: [email protected] WOODWARD & CO. LAWYERS LLP Suite 200, 1022 Government Street Agent for the IntervenInterveners,ers, Victoria, BC V8W 1X7 Cowichan Tribes, Stz'uminusStz’uminus First Nation, Tel: 250-383-2356250-383-2356 Penelakut Tribe, and Halalt First Nation Fax: 250-380-6560250-380-6560 Email: [email protected]

CoCo-Counsel-Counsel for the IntervenInterveners,ers, Cowichan Tribes, Stz'uminusStz’uminus First Nation, Penelakut Tribe, and Halalt First Nation

TO:

Clarine Ostrove Guy RegimbaldRégimbald MANDEL PINDER LLP GOWLING WLG (CANADA) LLP Barristers and Solicitors Suite 2600, 160 Elgin Street 422 —– 1080 Mainland Street Ottawa, ON 1(11K1P3 1C4 Vancouver, BC V6B 2T4 Tel: 613613-786-0197-786-0197 Tel: 604604-681-4146-681-4146 Fax:Fax: 613613-563-9869-563-9869 Fax: 604604-681-0959-681-0959 EE-mail:-mail: [email protected] EE-mail:-mail: [email protected]

Counsel for the Appellant Agent for the Appellant

Mark R. Kindrachuk, Q.C. Christopher Rupar Sharlene Telles-LangdonTelles-Langdon ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF CANADA 50 O'Connor Street, Department of Justice Canada Suite 500, Room 557 900 —– 840 Howe Street Ottawa, On K1A OH80H8 Vancouver, BC V6Z 2S9 Tel: 613613-670-6290-670-6290 Tel: 604604-666-0535-666-0535 Fax: 613613-954-1920-954-1920 Fax: 604604-666-2710-666-2710 EE-mail:-mail: [email protected]@justice.gc.ca EE-mail:-mail: [email protected]

Counsel for the Respondent Agent for the Respondent

Paul J.J. Cavalluzzo Owen Rees Adrienne Telford CONWAY BAXTER WILSON LLP CAVALLULO SHILTON McINTYRE 400-4011400-4011 Rooservelt Avenue CORNISH LLP Ottawa, ON K2A 3X9 474 Bathurst Street, Suite 300 Tel: 613613-780-2026-780-2026 Toronto, ON M5T 2S6 Fax: 613613-688-0271-688-0271 Tel: 416-964-1115416-964-1115 Email: [email protected] Fax: 416-964-5895416-964-5895 Email: [email protected] Agent for the Intervener, Specific Claims Counsel for the Intervener, Specific Tribunal Claims Tribunal

Senwung Luk Marie-FranceMarie-France Major Corey Shefman SUPREME ADVOCACY LLP OLTHUIS KLEER TOWNSHEND LLP 397 Gladstone Avenue, Suite 100

250 University Avenue, 8th Floor Ottawa, ON K2P 0Y9 Toronto, ON M5H 3E5 Tel: 613613-695-8855-695-8855 Tel: 416-981-9330416-981-9330 Fax: 613613-695-8580-695-8580 Fax: 416-981-9350416-981-9350 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Assembly of Agent for the Intervener, Assembly of Manitoba Chiefs Manitoba Chiefs

Cynthia Westaway Darryl Korell WESTAWAY LAW GROUP Suite 230, 55 Murray Street Ottawa, ON K1N 5M3 Tel: 613613-722-9091-722-9091 Fax: 613-722-9097613-722-9097 Email [email protected]

Counsel for the Intervener, Federation of Sovereign Indigenous Nations Scott Robertson Moira Dillon NAHWEGAHBOW, CORBIERE SUPREME LAW GROUP 5884 Rama Road, Suite 109 900 —– 275 Slater Street Rama, ON L3V 6H66116 Ottawa, ON K1P 5H95119 Tel: 705-325-0520705-325-0520 Tel: 613613-691-1224-691-1224 Fax: 705-325-7204705-325-7204 Fax: 613613-691-1338-691-1338 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Indigenous Bar Agent for the Intervener, Indigenous Bar Association in Canada Association in Canada

David C. Nahwegahbow Moira Dillon NAHWEGAHBOW, CORBIERE SUPREME LAW GROUP 5884 Rama Road, Suite 109 900 —– 275 Slater Street Rama, ON L3V 6H66116 Ottawa, ON K1P 5H95119 Tel: 705-325-0520705-325-0520 Tel: 613613-691-1224-691-1224 Fax: 705-325-7204705-325-7204 Fax: 613613-691-1338-691-1338 Email: [email protected] Email: [email protected]

Stuart Wuttke Agent for the Intervener, Assembly of First ASSEMBLY OF FIRST NATIONS Nations 55 Metcalfe Street, Suite 1600 Ottawa, ON K1P 6L5 Tel: 613613-241-6789-241-6789 Fax: 613-241-5808613-241-5808 Email: [email protected]

CoCo-Counsel-Counsel for the Intervener, Assembly of First Nations

Rosanne Kyle D. Lynne Watt Michael Bissonnette GOWLING WLG (Canada) LLP MANDELL PINDER LLP 2600 —– 160 Elgin Street Suite 422 —– 180 Mainland Street Ottawa, ON K1P 1C3 Vancouver, BC V6B 2T4 Tel: 613613-786-8695-786-8695 Tel: 604604-681-4146-681-4146 Fax: 613613-788-3509-788-3509 Fax: 604-681-0959604-681-0959 Email: [email protected]@gowlingwlg.com Email: [email protected] [email protected]

Counsel for the Intervener, Union of Agent for the Intervener, Union of British British Columbia Indian Chiefs, Columbia Indian Chiefs, Nlaka'panuxNlaka’panux Nlaka'panuxNlaka’panux Nation Tribal Council, Nation Tribal Council, Sto:LoStó:Lo Tribal Stó:LoSto:Lo Tribal Council and the Carrier Council and the Carrier Sekani Tribal Sekani Tribal Council Council

David Schulze David Taylor DIONNE SCHULZE JURISTES POWER 507 Place d’Armes,d'Armes, bureau 502 130, rue Albert, bureau 1103 Montreal,Montréal, QC H2Y 2W8 Ottawa, ON K1P 5G4 Tel: 514514-842-0748-842-0748 Tel: 613613-702-5560-702-5560 Fax: 514-842-9983514-842-9983 Fax: 1-888-404-22271-888-404-2227 Email: [email protected] Email: [email protected]

BenoîBenoitt Amyot Agent for the Intervener, Assembly of First CAIN LAMARRE Nations of Quebec and Labrador 814, boul. SaintSaint-Joseph-Joseph Roberval, QC G9H 2L6 Tel: 418-275-2472;418-275-2472; Fax: 418-275-6878418-275-6878 Email: [email protected]@clcw.qc.ca

CoCo-Counsel-Counsel for the Intervener, Assembly of First Nations of Quebec and Labrador

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Table of Contents

PART I OVERVIEW AND STATEMENT OF RELEVANT FACTS ...... 1

Facts Relevant to this Intervention ...... 1

PART II POSITION WITH RESPECT TO APPELLANT'SAPPELLANT’S QUESTIONS ...... 3

PART III ARGUMENT ...... 3 Protection at Law —– Governor Douglas Appropriated the Lands of Indian Settlements ...33

Section 14(1)(c) of the SCTA –— Establishment as Indian Reserves Upon Demarcation …5 Section 14(2) of the SCTA –— Federal Liability per Article 13 of the Terms of Union...... 6

Section 14(2) of the SCTA –— Federal Liability per Article 1 of the Terms of Union…….8 8

PART IVW SUBMISSION CONCERNING COSTS……...... 10 PART V ORDER SOUGHT………………………………………………………SOUGHT 10 10 PART VI TABLE OF AUTHORITIESAUTHORITIES…………………………………………… 11 11

PART VII RELEVANT LEGISLATION ...... 12

1

PART I - OVERVIEW AND STATEMENT OF RELEVANT FACTS

1. The IntervenerIntervener Cowichan Tribes is the largest Indian band in British Columbia and was the only intervener before the Federal Court of Appeal in this case. Cowichan Tribes intervenesintervenes jointly with the Stz’uminusStz'uminus First Nation, Penelakut Tribe and HalaltHalalt First Nation (the(the "Cowichan“Cowichan Nation Alliance", Alliance”, or "CNA") “CNA”) as they have specific and Aboriginal title claims to "Indian settlement"settlement” lands in British Columbia that may be affected by this Court'sCourt’s decision.

2. During the colonial period in British Columbia under Governor Douglas Indian settlement lands were protected at law, as in the case at bar, and in many instances were finalizedfmalized as Indian reserves, for example as this Court identified in Guerin v. The Queen, [1984] 2 S.C.R 335, at 379. ItIt is submitted that issues in this case may be determined on the basis of this reserve creation process and its entrenchment withinwithin our constitution through Article 13 of the British Columbia Terms of UnionUnion,, 18711871.. ItIt is important to this Intervener to at least preserve such arguments for specific claims under s. 14(1)(c) 14(1)(c) and (2) of the Specific Claims Tribunal Act (“SCTA("SCTA')”) and Aboriginal title claims under s. 35 of the Constitution Act, 19821982..

Facts Relevant to this Intervention

3. IInn September 1858, James Douglas was appointed the first Governor of the mainland Colony of British Columbia.'Columbia.1 His authority was "absolutely“absolutely autocratic; he represented the Crown in every particular, and was, in fact, the law. At the same time careful despatches were sent to him by the Colonial Minister of the day laying down in explicit terms the methods of administration which it was desired he should follow."follow.”2 The The Specific Claims Tribunal ("SCT")(“SCT”) concluded,concluded, "[t]he“[t]he Colony of British Columbia was not limited in its jurisdiction to create reserves. The Colony of British Columbia had the power to set apart reserves for Indian occupation as an incident of Crown sovereignty and Crown title. "i3

4. In February 1859, Governor Douglas enacted Proclamation No. 13 declaring underlying Crown title over mainland British Columbia, enabling the sale of Crown landslands,, and setting out his

1 1 Tribunal Decision, para. 25. 2 2 A.A.G.B.C. G.B.C. v. A.G. Can., [1906] A.C. 552 (J.C.P.C.), para. 6. 3 3 Tribunal Decision, para. 231.

2 executive authority to reserve lands for any advisable purpose.4 InIn response to colonial dispatchesdispatches instructing him on matters of policy, including the protection of Indian interests,interests,5 thethe SCT found that in March 1859 the Governor advised of "his“his proposed Indian reserve policy",policy”, further to which "[a]nticipatory“[a]nticipatory reserves of Land for the benefit and support of the Indian Races, will be made for that purpose, in all Districts of British Columbia inhabited by Native Tribes.Tribes."”6

5. To this end, and further to his powers under Proclamation No. 1313,, iinn October 1859, Douglas instructed his Chief Commissioner of Lands & Works,Works, R.C. Moody, who administeredadministered Crown land sales,sales, "[y]ou“[y]ou will also observe …... the sites of all Indian Villages and the land which they have been accustomed to cultivate to the extent of several hundred acres round each village have been reserved …”..."7 Further,Further, in January 1860,1860, Douglas enacted Proclamation No. 15 allowing settlers to pre-emptpre-empt Crown land but for the sites of "an“an Indian Reserve or settlement."settlement.”8 Douglas Douglas advised the Act reserved Indian settlement lands "for“for the benefit of the Crown."Crown.”9

6. As the SCT found, Governor Douglas then repeatedly ordered colonial officials ((e.g.e.g. Mr. Nind) to demarcate Indian settlement lands as Indian reserves: "Douglas'“Douglas’ consistent instructions to the Chief Commissioner of Land and Works (`CCLW'), (‘CCLW’), and to magistrates, gold commissioners,commissioners, assistant land commissioners and surveyors were that Indian reserves should be marked out according to the wishes of the Indians and that in all cases Indian villages and the surrounding lands needed for their support should be included."included.”10

7. The SCT noted noted that in August 1867, Joseph Trutch, CCLW, reported to the Acting Colonial Secretary that prior to Governor Douglas'Douglas’ retirement in 1864 some "Indian“Indian Reserves had

4 4 Tribunal Decision, paras. 30, 115, 185; Proclamation No. 13, 1859 February 14, by His Excellency James Douglas, Governor, ss. 1-4,1-4, Federal Court of Appeal Record (`FCA(‘FCA AR'),AR’), Vol 1, Exh C, Tab 6a, at 260-261.260-261. 5 5 Tribunal Decision, paras. 25-28,25-28, 32. 6 6 Tribunal Decision, para. 27. 7 7 Tribunal Decision, para. 34; FCA AR, Vol 1, Exh C, Tab 1ala at 119 (transcript); Vol 6, Exh E at 1630-1631.1630-1631. 8 8 Tribunal Decision, paras. 35, 117, 152, 232-233;232-233; Proclamation No. 15, 1860 January 4, by His Excellency James Douglas, Governor, s. 1, FCA AR, Vol 1, Exh C, Tab 6b, at 262-263.262-263. 9 9 Tribunal Decision, para. 36. 10 10 Tribunal Decision, paras. 5151-55,-55, 33, 37, 7-8,7-8, 9595-100;-100; see also FCA AR, Vol 3, Tab 15e, at 844844-847-847 (paras. 4-6).4-6).

3 been staked off' off” within the Colony." Colony.11 CaseCase law confirms this point, including this Court's Court’s decisiondecision in GuerinGuerin,, supra, with respect to the Musqeuam Indian reserve on the .River.12

8. The SCT held that "the“the colonial policy of protection of Indian settlements established under Douglas continued in the colony up to confederation."confederation.”13 As As such, it was incorporated into Article 13 of the British Columbia Terms of Union, 1871, which obligated Canada and British Columbia to continuecontinue the Indian reserve creation process in cooperation.'cooperation.144

PART II - POSITION WITH RESPECT TO APPELLANT'SAPPELLANT’S QUESTIONSQUESTIONS

9. The Intervener CNA'sCNA’s position with respect to the questions in issue is that the SCT’sSCT's decision was reasonable with regard to the Colony's Colony’s breach under s. 14(1) of the SCTA and Canada'sCanada’s responsibility under s. 14(2) of the SCTA.

PART III - ARGUMENT

ProtectionProtection at Law —– Governor Douglas Appropriated the LandsLands of Indian Settlements

10. Regarding the colonial period in British Columbia, this this appeal has focused on how Governor Douglas protected "Indian“Indian settlement"settlement” lands at law by reserving them out of the land available for settler pre-emptionpre-emption in his Proclamation No. 15 of January 1860.1860.15 The The SCT found that the Appellant WLIB'sWLIB’s interest in the Indian settlement land at issue was thus a cognizable interest sufficient to ground a fiduciary duty as in thisthis Court'sCourt’s decision in WewaykumWewaykum Indian Band v. Canada, 2002 SCC 79 (“("Wewaykum").Wewaykum”).16

11 11 Tribunal Decision, para. 273; these Indian reserves are listed Trutch’sTrutch's report as found at FCA AR, Vol 1, Tab 1a,la, 131. 12 12 Instructions for demarcation of this Indian reserve were issued April 13, 1861, and confirmed April 15, 1861: FCA AR, Vol 1, Tab 1a,la, 123-124;123-124; on August 28, 1867, CCLW Trutch acknowledged this reserve as "Three“Three lots at the mouth of the North Arm of the Fraser":Fraser”: FCA AR, Vol 1, Tab 1a,la, 131. See also Jules v. Harper Ranch Ltd., [1989] 3 C.N.L.R. 67 (BCSC) (QL) ("Jules"),(“Jules”), pp. 5, 6, 24, re four Indian reserves created in the interior of British Columbia. 13 13 Tribunal Decision, para. 292. 14 14 Tribunal Decision,Decision, paras. 293-295,293-295, 314; 320; Wewaykum,Wewaykum, infra,infra, at paras. 14-15.14-15. 15 15 Tribunal Decision, paras. 35-39,35-39, 117-168;117-168; Appellant'sAppellant’s Factum, paras. 18-24,18-24, 103-108;103-108; Respondent'sRespondent’s Factum, paras. 104-123.104-123. 16 16 Tribunal Decision, paras. 224-234.224-234.

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11. The IIntervenorntervenor CNA submits that in deciding this appeal it may be of significance to recognize that Governor Douglas protected "Indian “Indian settlement" settlement” lands at law generally,generally, by reserving them out of the land available for sale as well. This is the legal effect of Douglas'Douglas’ instructions of October 1859 to his CCLW,CCLW, R.C. Moody, who administered Crown land sales subject to the Governor'sGovernor’s land reservations under s. 3 of ProclamationProclamation No. 13 from February 1859:17 "[y]ou“[y]ou will also observe …... the sites of all Indian Villages and the land which they have been accustomed to cultivate to the extent of several hundred acres round each village have been reserved …”..."18 InIn short, the Intervenor CNA submits that Governor Douglas appropriated lands of Indian settlements from the Colony'sColony’s land disposition processes generally, first by executive order of October 1859 made under Proclamation No. 13, and second by legislative enactment of Proclamation No. 15 in January 1860. It was only by reserving Indian settlement lands from Crown disposition via sale and pre-emptionpre-emption that Governor Douglas could affect peaceful and orderly immigration in British Columbia in the face of threatened Indian war.19

12. The SCT held "the“the colonial policy of protection of Indian settlements established under Douglas continued in the colony up to confederation."confederation.”2°20 AsAs such, it was incorporated into Article 13 of the Terms of Union, which obligated the Province to provide CanadaCanada with "tracts“tracts of land of such extent it has hitherto been the practice of the British Columbia Government to appropriate"appropriate” for the purpose of Indian reserves.21 Post-Confederation, Post-Confederation, British Columbia protected Indian settlement lands from sale and pre-emptionpre-emption in all Land Acts through to 1970.1970.22

13. At the very least, the Intervenor CNA stresses the importance of preserving such argument

17 17 Tribunal Decision,Decision, para. 30, 115, 185; Proclamation No. 13, supra, fn. 4. 18 18 Tribunal Decision, para. 34; FCA AR, Vol 1 Exh C, Tab 1ala at 119 (transcript); Vol 6, Exh E at 1630-1631.1630-1631. 19 19 Tribunal Decision, paras. 40-42.40-42. 20 20 Tribunal Decision, para. 292. 21 21 Tribunal Decision, paras.paras. 293-295,293-295, 314; 320; Wewaykum,Wewaykum, supra, at paras. 14-15.14-15. 22 22 Land Act, 1874, 37 Vict. 2, ss.ss. 3, 24, 61, 62; Land Act, 1875, 38 Vict 5, ss. 3, 24, 61; Land Act, 1884, 47 Vict. 16, ss.ss. 3, 31; Land Act, SBC 1888, c.c. 6666,, ss. 5, 19, 30; Land Act, RSBC 1897, c.c. 113,113, ss. 5, 31, 65; Land Act, SBC 1908, cc.. 3030,, ss. 5, 36, 64; Land Act, RSBC 1911, c. 129,129, ss. 7(2), 34(1), 45, 109; Land Act, RSBC 1924, c. 131,131, ss. 12, 39(1), 51; Land Act, RSBC 1936, c. 144,144, ss. 12, 40(1), 52; Land Act, RSBC 1948, c. 175,175, ss. 12, 40(1), 5252;; Land Act, RSBC 1960, c. 206,206, ss. 12, 40(1), 52; all as amended.

5 for a future case when the legal effect of Governor Douglas' Douglas’ instructions toto his Chief Commissioner of Lands & Works in October 1859 is squarely at issue. The CNA'CNA’s s current action against the Province and Canada in the Supreme Court of British Columbia puts this directly at issue in a claim of Aboriginal title to Indian settlement lands adversely affected byby the Crown'sCrown’s land sales subsequent to the Governor'sGovernor’s retirementretirement in 1864.

Section 14(1)(c) of the SCTA —– Establishment as Indian Reserves Upon DemarcationDemarcation

14. This appeal has also focused on Governor Douglas'Douglas’ consistent instructions to colonial officials,officials, including Mr. Nind,Nind, "that“that Indian reserves should be marked out according to the wishes of the Indians and that in all cases Indian villages and the surrounding lands needed for their support should be included.”included."23 The The SCT held that this process was necessary to protect Indian settlement lands onon the ground by giving notice to prospective pre-emptorspre-emptors in the area,area,24 and was a taking of discretionary control sufficient to trigger a fiduciary duty as in this Court'sCourt’s decision in WewaykumWewaykum,, supra.25 Mr. Mr. Nind'sNind’s failure to demarcatedemarcate the Appellant WLIB'sWLIB’s settlement was a breach of fiduciary duty that fit within the scope of s. 14(1)(b) of the SCTA, which encompasses a Crown breach of legal obligation under legislation pertaining to lands reserved for Indians, in this case ProclamationProclamation No. 15 as it reserved Indian settlement lands from those made available for pre-emption.pre-emption.

15. This Intervener submits colonial demarcation of an Indian settlement was not simply to ensure protection of those lands as set aside under Proclamation No. 15 as a Crown reserve.reserve. The full legal effect of demarcation was to intentionally finalize that land as an Indian reserve, per the instructions of Governor Douglas issued in exercise of the royal prerogative to create such a reserve.reserve. Consequently, this case could have been,been, and could be, decided on the basis that Mr. Nind'sNind’s failure to demarcate the Appellant'sAppellant’s settlement was a breachbreach of fiduciary duty within the scope of s. 14(1)(c) of the SCTA, which encompasses a breach of legal obligation arising from the Crown'sCrown’s non-provisionnon-provision of reserve land. At a minimum, this IntervenerIntervener has an interest in seeing

23 23 Tribunal Decision, paras. 51-55,51-55, 33, 37, 7-8,7-8, 9595-100;-100; see also FCA AR, Vol 3, Tab 15e, at 844844-847-847 (paras. 4-6).4-6). 24 24 Tribunal Decision, para. 51. 25 25 Tribunal Decision, paras. 218-220.218-220.

6 the argument preserved for future specific claims under the SCTA.

16. TThehe Intervenor CNA further submits that in deciding this appeal it may be important to consider that therethere are Indian reserves today in British Columbia that have their origins from the Douglas era pre-Confederation,pre-Confederation, as the findings and evidence in this case show.show.26 Case Case law itself establishes this point.27 ItIt may be important for other specific claclaimsims under s. 14(1)(c) of the SCTA, which also encompasses a breach of legal obligation arising from the Crown'sCrown’s provision of, and administration of, reserve landslands,, including during the colonial period per s. 14(2).14(2).

17. Finally, the Intervener CNA submits thisthis Court should eschew the SCT’sSCT's obiter dicta, at para. 149, that Governor Douglas used the term "Indian“Indian Reserve"Reserve” in Proclamation No. 15 not in the sense considered by this Court in Ross River Dena Council v. Canada, 2002 SCC 54, regarding the claim that an Indian reservereserve had been established within the definition of that term in the Indian Act.Act. Proclamation No. 15 excludes the lands of both Indian reserves and settlements from the pre-emptionpre-emption process because the Governor was legislatively protectingprotecting Indian settlement lands from pre-emptionpre-emption in anticipation of Indian reserve creation,creation, to be eeffectedffected further to his executive instructions for colonial officials to demarcate each Indian settlement after villager consultation.consultation. This is why in March 1859 Douglas advisedadvised the Colonial Office he would be making "anticipatory“anticipatory reserves"reserves” of Indian settlement lands, and after doing so in October 1859 by executive order and January 1860 by legislation (i.e.(i.e. Proclamation No. 1515)) he reported having made Crown reserves of suchsuch land, which were not as yet demarcated.

Section 14(2) of the SCTA —– Federal Liability per Article 13 of the Terms of Union

18. With respect to s. 14(2) of the SCTA, the SCT concluded that "the“the legal obligations that ‘…' ... became or would have become the responsibility of the Crown in right of Canada'Canada’ are those that became obligations of Canada on confederation, …”..."28 TheThe SCT then held, "Article“Article 13 of the Terms of Union obligated Canada to pursue a policy as liberal as that which existed in the Colony. ColonyColony policy was to protect Indian settlements."settlements.”29 Further, "Canada“Canada had, by the terms of Article

26 Supra, fn. 11. 27 27 Guerin, supra, at 379; Jules, supra, pp. 5, 6, 24. 28 28 Tribunal Decision, paras. 161-164.161-164. 29 29 Tribunal Decision, para. 314. See also 292-295.292-295.

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13 of the Terms of Union, undertaken, on the Indians behalf to adopt a policy in relation to reserves as liberal as that of the former colony. In doing so it assumed, assumed, with limits, the unilateral undertaking previously made by the colony.”colony."30 The The SCT concluded, "Canada“Canada is liable under s. 14(b) of the SCTA for the colonial breaches of legislation and fiduciary duty."duty.”31

19. The Appellant submits "[t]he“[t]he Colony'sColony’s fiduciary dutiesduties in relation to the Band'sBand’s Village Lands (and the liability for breaching those duties) became Canada's Canada’s responsibilities on Confederation, as it had responsibility for Indians and lands reserved for Indians. Such obligations and liabilities could not fall to the Province, as the Province does not have authority for the subject matter. Any other interpretation of what occurred to the legal obligations extent as of the Colony'sColony’s entry into Confederation...Confederation… would leave a vacuum …... with neither the Province nor Canada assuming responsibility for addressing Indians’Indians' land grievances."grievances.”32

20. The Intervenor CNA submits this is incorrect. Canada'sCanada’s responsibilities on Confederation in this case are due to its undertaking with British Columbia in Article 13 to continue the Colony'sColony’s Indian reserve policy. Federal assumption of exclusive jurisdictionjurisdiction in relation to "Indians,“Indians, and Lands reserved for the Indians"Indians” under s. 91(24) of Constitution Act, 18671867,, or as in Article 13 "[t]he“[t]he charge of the Indians,Indians, and the trustee and management for the lands reserved for their use and benefit, …”,...", is notnot a bar to obligations or liabilities with respect to Indian settlement lands falling upon the Province of British Columbia. Columbia. Indeed, as found by the SCT, Article Article 13 "places “places obligations on Canada and the Province,"Province,” the latter being obliged to convey to Canada tracts of land in continuance of the Indian reserve policy.33 This This Court'sCourt’s decisions in Haida Nation, Rio Tinto and Tsilhqot’inTsilhqot'in Nation illustrate that the Province can have obligations and liabilities in relation to Aboriginal interests in land, despite federal jurisdiction, in those cases based on its proprietary interest in land per Constitution Act, 1867, s. 109.34

30 30 Tribunal Decision, para. 320. See also 292-295,292-295, 37. 31 31 Tribunal Decision, para. 245. 32 32 Appellant Factum, paras. 114-115.114-115. 33 33 Tribunal Decision, paras. 293, 337. 34 34 Haida Nation v. British Columbia, 2004 SCC 73, at paras. 5757-59;-59; Rio Tinto Alcan Ltd. v. Carrier Sekani Tribal Council, 2010 SCC 43, at para. 37; Tsilhqot’inTsilhqot'in Nation v. British Columbia, 2014 SCSCCC 44, at paras. 9595-96,-96, 153.

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21. The Intervenor CNA expressly relies on Article 13 of the Terms of Union as imposing ongoing obligations on British Columbia in its current litigation against the Respondent Canada and British Columbia claiming Aboriginal title to Indian settlement lands, consistent with this Court'sCourt’s decision in R v JackJack..35 The The Colony'sColony’s policy of Indian settlement land protection was continued through and after Confederation by Article 13 of the Terms of Union and subsequent Land Acts.Acts.36 AsAs a result, post-Confederationpost-Confederation disposition of the claimed Indian settlement land by British Columbia was constitutionally and statutorily unauthorized. In deciding the appeal at bar this Intervener submits that such argument should be preserved for futfutureure cases engaging the Province'sProvince’s obligations under Article 13 with respect to Indian settlement lands.

Section 14(2) of the SCTA —– Federal Liability per Article 1 of the Terms of Union

22. TThehe Appellant WLIB relied on Article 1 of the Terms of Union before thethe SCT, to argue that Canada is liable for the Crown's failure to apply and enforce colonial proclamations protecting Indian settlement lands and reserves from pre-emption.pre-emption.37 The The SCT determined that an analysis of Article 1 was unnecessary in deciding WLIB's specific cclaim,laim,38 and thethe Federal Court of Appeal concluded that an analysis was unnecessary to decide the Appea1.Appeal.39

23. On this Appeal the Appellant does not explicitly rely on Article 1.40 Canada submits that this Court should remit the interpretation of Article 1 to the SCT should such consideration be determineddetermined necessary.necessary.41 The The Intervenor agrees that any consideration of Article 1 should be remitted to the SCTSCT,, if necessary as part of the second stage of proceedings.proceedings. However, if thisthis Court determines it appropriate to interpret Article 1 for the first time on this Appeal,Appeal, the CNA submitssubmits that the interpretation offered by the Respondent in its Factum is unduly restrictive.restrictive.42

24. Article 1 of the Terms of Union, 1871 provides that "Canada"Canada shall be liable for the debts

35 35 [1980] SCR 294. 36 36 Supra, fn.fn. 22. 37 37 Tribunal Decision, paras. 240, 247. 38 38 Tribunal Decision, paras. 243, 248. 39 39 FCA Decision, para. 75. 40 Appellant'sAppellant’s Factum, Part VI - Table of Authorities, Statutes and Constitutional Documents. 41 41 Canada Factum, para. 126. 42 42 Canada Factum, paras. 127-136.127-136.

9 and liabilities of British Columbia existing at the time of the Union."Union." Article 2 addresses British Columbia'sColumbia's "debts""debts" at the time of Confederation, but does not purport to address its "liabilities".

25. The "liability" of the CrownCrown in this case was crystalized prior to 1871. The SCT held that in the 1860s the Colony breached its fiduciary and legislative obligationsobligations to the Appellant,Appellant, which required the demarcation and settingsetting aside of its Indian settlement. Instead, the Colony allowedallowed the lands to be pre-empted.pre-empted.43 An analysis of Article 1 in the context of the ConstitutionConstitution as a whole (including Article 13) demonstrates that the liabilities that crystalized prior to Confederation were "liabilities""liabilities" for which Canada took responsibilityresponsibility upon Confederation.Confederation.

26. The Judicial Committee of the Privy Council has considered the extent to which liabilities passed from a Colony to the Crown in right of Canada under the likewise worded s. 111 of the Constitution Act, 18671867:: "Canada shall be liable for the Debts and Liabilities of each Province existing at the Union."'"Union."44 In Canada (Attorney General) v Ontario (Attorney General)General),,45 the Privy Council considered whether Canada or the Provinces would have liability for a potential increase in annuitiesannuities paid by the Provinces under Treaties prior to Confederation.

27. The Privy Council considered s. 111 in context with other constitutional provisions to determinedetermine the scope of future liability accepted by Canada. Section 109 specifically provides that provincialprovincial land is "subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same". 46 TheThe Privy Council considered "whether liability for the increased amount to the InIndiandian annuities stipulated by the treaties of 1850 is so connected with or attached to the surrendered territory and its proceeds, in the sense of the concluding enactments of s. 109, as to follow the beneficial interest, and form a charge upon it in the hands of the Province."Province."

28. The Privy Council concluded that the obligationsobligations in respect of annuities werewere not a "charge upon the lands" over which the Province retained liability pursuant to s. 109,109, and responsibility thus transferred to Canada in accordance with s. 111. Subsequent Supreme Court Court of Canada

43 43 Tribunal Decision, paras. 160, 202-210.202-210. 44 44 Constitution Act, 1867 (UK) 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5. 45 45 (1896), [1897] AC 199. 46 46 Constitution Act, 1867 (UK) 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.

10 decisions have adopted a similar approach.approach.47

29. The narrow interpretation of Article 1 that Canada offers in its Factum,Factum, equating "liabilities" to "debts","debts", such that "liability" has no independent meaning,meaning, is not consistent with this case lawlaw,, the plain meaning of the language used, used,48 andand principles of Constitutional interpretation and the objective of reconciliationreconciliation..49

30. In this case, toto the extent that liability for any breach of fiduciary duty or legal obligation crystalized prior to Confederation,Confederation, such liability would not be a charge upon the land that remains with the Province as an exception to Article 1.

31. Regardless of whether thisthis Court determinesdetermines that Article 1 applies to fix Canada with liability in this instance,instance, this Intervener emphasizesemphasizes that this is not a claim in Aboriginal title or a claim for restitutionrestitution of land. It is a claim for financial compensation under the SCTA for breach of a legal or fiduciary obligation.obligation. The issue of responsibility, as between Canada and BC, for reconciling with AboriginalAboriginal peoples whose Aboriginal title was interfered with prior to ConfederationConfederation should be left for a case that directly raises the issue.

PARTSPARTS IV & V - SUBMISSIONS CONCERNINCONCERNINGG COSTS AND ORDER SOUGHT

32. The Intervener CNA seeks no costs and asks that none be ordered against it. As IntervenIntervenerer the CNA takes the position that this appeal should be allowed.allowed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,SUBMITTED, dated April 18, 2017.

David M. Robbins Counsel for the Interveners Cowichan Tribes, Stz’uminusStz'uminus First Nation, Penelakut Tribe, and Halalt First Nation

47 47 Canada v Yule (1899), 20 SCR 24; Miller v CanadaCanada,, [1950] SCR 168. 48 48 The term "liability" has been interpretedinterpreted broadly by the courts:courts: Bank of Nova Scotia v. Forsyth (1985), 63 BCLR 60 at 63 (Co. Ct.); Burke v. Burke (1987), 27 Man. R. (2d) 216 (QB); Royal Trust Co. v. H.A. Roberts Group Ltd.,Ltd., [1995] SJ No 96 (QL) at para. 119 (QB);(QB); St. Rose & District Cattle Feeders CoCo-op-op v GeisalGeisal,, 2010 MBCA 52 at paras 7070-78.-78. 49 49 CanadaCanada v. Hislop [2007] 1 SCR 429, paras. 94, 114.

11

PART VI - TABLE OF AUTHORITIES

Paragraph

Bank of Nova Scotia v. Forsyth (1985), 63 BCLR 60 at 63 (Co. Ct.) Bank of Nova Scotia v. Forsyth (1985), 63 BCLR 60 at 63 (Co. Ct.) 29 British Columbia (Attorney General) v Canada (Attorney General), [1906] AC 552 (JCPC) at para. 6 3 Burke v. Burke (1987), 27 Man. R. (2d) 216 (QB) Burke v. Burke 29 Canada (Attorney General) v Ontario (Attorney General) (1996),(1996), [1897] AC 199 26, 27, 28 Canada v. Hislop [2007] 1 SCR 429 Canada v. Hislop [2007] 1 SCR 29 Canada v Yule (1899), 30 SCR 24 Canada v Yule (1899), 30 SCR 28 Guerin v. The Queen, [1984] 2 SCR 335 Guerin v. The Queen, [1984] 2 SCR 335 2, 7,7, 16 HaidaHaida Nation v British Columbia (Minister of Forests),Forests), [2004][2004] 3 SCR 511 20 Jules v. Harper Ranch Ltd., [1989] 3 CNLR 67 (BCSC) (QL) Jules v. Harper Ranch Ltd., [1989] 3 CNLR 67 (BCSC) (QL) 7,7, 16 Miller v Canada, [1950] SCR 168 Miller v Canada, [1950] SCR 168 29 R v Jack, [1980] 1 SCR 294 R v Jack [1980] 1 SCR 294 21 Rio Tinto Alcan v. Carrier Sekani Tribal Council, [2010] 2 SCR 650 Rio Tinto Alcan v. Carrier Sekani Tribal Council, [2010] 2 SCR 650 20 Ross River Dena Council Band v Canada, [2002] 2 SCR 816 River Dena Council Band v Canada, [2002] 2 SCR 816 17 Royal Trust Co. v. H.A. Roberts Group Ltd.,Ltd., [1995] SJ No 96 (QL) at para. 119 (QB) 29 St. Rose & District Cattle Feeders Co-op v Geisal, 2010 MBCA 52 St. Rose & District Cattle Feeders Co-op v Geisal, 2010 MBCA 52 29 Tsilhqot’in Nation v British Columbia, [2014] 2 SCR 257 Tsilhqot'in Nation v British Columbia, [2014] 2 SCR 257 20 Wewaykum Indian Band v Canada, [2002] 4 SCR 245 Wewaykum Indian Band v Canada, [2002] 4 8, 10,10, 12, 14

12

PART VII - RELEVANT LEGISLATION

Paragraph

2, 8, 12, 18, British Columbia Terms of Union, 18711871,, RSC 1985, App II, No 10 21-25,21-25, 29-3129-31

Constitution Act, 1867, ss.ss. 91(24)91(24),, 109, 111 26-2926-29

1, 2, 13, Constitution Act, 1982, s.s. 35 21, 30

Land Act, 1874, 37 Vict. 2, ss. 3, 24, 61, 62; Land Act, 1875, 38 Vict 5, ss. 3, 24, 61; Land Act, 1884, 47 Vict.Vict. 16, ss. 3, 31; Land Act, SBC 1888, c. 66, ss. 5, 19, 30; Land Act, RSBC 1897, c. 113, ss. 5, 31, 65; Land Act, SBC 1908, c. 30, ss. 5, 36, 64; Land Act, RSBC 1911, c. 129, 12, 21 ss. 7(2), 34(1), 45, 109; Land Act, RSBC 1924, c. 131, ss. 12, 39(1), 51; Land Act,Act, RSBC 1936, c. 144, ss. 12, 40(1), 52; Land Act, RSBC 1948, c. 175, ss. 12, 40(1), 52; Land Act, RSBC 1960, c. 206, ss. 12, 40(1), 52; all as amended.amended.

Proclamation No. 13, 1859 February 14 4, 5, 11

5, 10,10, 11, 14, Proclamation No. 1515,, 1860 January 4 15, 17

22, 99, 1414, 15, Specific Claims Tribunal Act,Act, SC 2008, c 22, ss.ss. 14(1)(b), (c), and 14(2) 116, 6 18,l'8, 2'244, , 31