SCC File No.: 38682

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR )

IN THE MATTER OF: The Constitutional Question Act, R.S.B.C. 1996, c. 68

AND IN THE MATTER OF A Reference by the Lieutenant Governor in Council set out in the Order in Council No. 211/19 dated April 25, 2018 concerning the constitutionality of amendments to provisions in the Environmental Management Act, R.S.B.C. 2003, c. 53 regarding the impacts of releases of certain hazardous substances

BETWEEN:

ATTORNEY GENERAL OF BRITISH COLUMBIA APPELLANT and

ATTORNEY GENERAL OF CANADA RESPONDENT and

ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF QUÉBEC, ATTORNEY GENERAL OF SASKATCHEWAN, ECOJUSTICE CANADA SOCIETY, CANADIAN ENERGY PIPELINE ASSOCIATION, ASSEMBLY OF FIRST NATIONS, HEILSTSUK TRIBAL COUNCIL, CITY OF BURNABY, TRANS MOUNTAIN PIPELINE ULC, ENBRIDGE INC., RAILWAY ASSOCIATION OF CANADA, EXPLORERS AND PRODUCERS ASSOCIATION OF CANADA, CANADIAN FUELS ASSOCIATION, COUNCIL OF THE HAIDA NATION, LITTLE INDIAN BAND, CITY OF VANCOUVER, SUNCOR ENERGY INC., IMPERIAL OIL LIMITED, HUSKY OIL OPERATIONS LIMITED, CENOVUS ENERGY INC. and CANADIAN NATURAL RESOURCES LIMITED, BEECHER BAY FIRST NATION, SONGHEES NATION, T’SOU-KE NATION, and CANADIAN ASSOCIATION OF PETROLEUM PRODUCERS

INTERVENERS

FACTUM OF THE INTERVENER, LITTLE SHUSWAP LAKE INDIAN BAND (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)

GRANT NOVACS NORELL GOWLING WLG (Canada) LLP 400 – 900 Howe Street 2600 – 160 Elgin Street VANCOUVER BC V6Z 2M4 OTTAWA ON K1P 1C3

Arthur M. Grant Brian A. Crane, Q.C. Tel: (604) 642-6361 Tel: (613) 233-1781 Fax: (604) 609-6688 Fax: (613) 563-9869 E-mail:[email protected] E-mail:[email protected]

Counsel for the Intervener Ottawa Agent for the Intervener Little Shuswap Lake Indian Band Little Shuswap Lake Indian Band

ORIGINAL TO: THE REGISTRAR

COPIES TO:

ARVAY FINLAY LLP MICHAEL J. 1512 – 808 Nelson Street SOBKIN VANCOUVER BC V6Z 2H2 331 Somerset Street Ottawa, ON K2P 0J8 Joseph J. Arvay, Q.C. Catherine Tel: (613) 282-1712 Boies Parker Fax: (613) 288-2896 J. Gareth Morley E-mail: [email protected] Tel: (604) 696-9828 Fax: 1-888-575-3281 Ottawa Agent for the Appellant E-mail:[email protected]

Counsel for the Appellant

ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF CANADA 900 - 840 Howe Street 56 O’Connor Street, 5th Floor Vancouver, BC V6Z 2S9 OTTAWA ON K1A 0H8

Jan Brongers Christopher Rupar BJ Wray Tel: (613) 670-6290 Tel: (604) 666-0110/(604) 666-4304 Fax: (613) 954-1920 Fax: (604) 666-1585 E-mail:[email protected] E-mail:[email protected] [email protected]

Counsel for the Respondent, Ottawa Agent for the Respondent, Attorney General of Canada Attorney General of Canada ATTORNEY GENERAL OF ALBERTA GOWLING WLG (Canada) LLP Gall Legge Grant Zwack LLP 160 Elgin Street, Suite 2600 1000 1199 West Hastings Street OTTAWA ON K1P 1C3 VANCOUVER BC V6Z 2H2 Peter A. Gall, Q.C. D. Lynne Watt Andrea L. Zwack Tel: (613) 786-8695 Tel: (604) 891-1152 Fax: (613) 788-3509 Fax: (604) 669-5101 E-mail:[email protected] E-mail:[email protected] [email protected]

Counsel for the Intervener, Ottawa Agent for the Intervener, Attorney General of Alberta Attorney General of Alberta

ATTORNEY GENERAL OF ONTARIO POWER LAW 720 Bay Street, 4th Floor 130 Albert Street, Suite 1103 TORONTO ON M7A 2S9 OTTAWA ON K1P 5G4

Josh Hunter Maxine Vincelette Padraic Ryan Tel: (613) 702-5573 Tel: (416) 326-0131 Fax: (613) 702-5573 Fax: (416) 326-4015 Email:[email protected] E-mail:[email protected] [email protected] Counsel for the Intervener, Attorney Ottawa Agent for the Intervener, Attorney General of Ontario General of Ontario

ATTORNEY GENERAL OF NOËL & ASSOCIÉS QUÉBEC 111, rue Champlain GATINEAU 1200, route del’Église, 4ͤ étage QC J8X 3R1 QUEBEC CITY QC G1V 4M1

Frédéric Perrault Pierre Landry Tel: (418) 643-1477, ext. 20785 Tel: (819) 503-2178 Fax: (418) 644-7030 Fax: (819) 771-5397 E-mail:[email protected] E-mail:[email protected]

Counsel for the Intervener, Procureure Ottawa Agent for the Intervener, Générale du Québec Procureure Générale du Québec

ATTORNEY GENERAL OF GOWLING WLG (Canada) LLP SASKATCHEWAN 160 Elgin Street, Suite 2600 Constitutional Law Branch OTTAWA, ON K1P 1C3 820 – 1874 Scarth Street REGINA, SK S4P 4B3 D. Lynne Watt Tel: (613) 786-8695 Thomson Irvine Fax: (613) 788-3509 Noah Wernikowski [email protected] Tel: (306) 787 -6307 Fax: (306) 787-9111 Ottawa Agent for the E-mail: [email protected] Intervener, Attorney General of Saskatchewan Counsel for the Intervener, Attorney General of Saskatchewan

CITY OF VANCOUVER GOWLING WLG (Canada) LLP 453 West 12th Avenue 160 Elgin Street, Suite 2600 Vancouver, BC V5Y 1V4 Ottawa, ON K1P 1C3

Susan B. Horne Jeffrey W. Beedell Kevin T. Nakanishi Tel: (613) 786-0171 Tele: (604) 873-7512 Fax: (613) 788-3587 Fax: (604) 873-7445 E-mail: [email protected] E-mail: [email protected] Ottawa Agent for the Intervener, Counsel for the Intervener, City of City of Vancouver Vancouver

ECOJUSTICE CANADA SOCIETY CHAMP AND ASSOCIATES 390 – 425 Carrall Street 43 Florence Street VANCOUVER BC v6b 6e3 OTTAWA ON K2P 0W6 Harry Wruck, Q.C. Bijon Roy Tel: (604) 685-5618 Tel: (613) 237-4740 Fax: (604) 685-7813 Fax: (613) 232-2680 E-mail:[email protected] E-mail:[email protected]

Counsel for the Intervener Ecojustice Ottawa Agent for the Intervener Canada Society Ecojustice Canada Society

BORDEN LADNER GERVAIS LLP BORDEN LADNER GERVAIS LLP Centennial Place 1300-100 Queen Street 1900 – 520 3rd Ave SW OTTAWA, ON KIP 1J9 CALGARY, AB T2P 0R3

Michael A. Marion Karen Perron Alan Ross Tel: (613) 369-4795 Brett R. Carlson Fax: (613) 230-8842 Tel: (403) 232-9500 E-mail: [email protected] Fax: (403) 266-1395 E-mail: [email protected] Counsel for the Intervener Canadian Ottawa Agent for the Intervener Energy Pipeline Association Canadian Energy Pipeline Association

ASSEMBLY OF FIRST NATIONS SUPREME LAW GROUP 55 Metcalfe Street, Suite 1600 900 – 275 Slater Street OTTAWA ON K1P 6L5 OTTAWA ON K1P 5H9

Stuart Wuttke Moira Dillon Julie McGregor Tel: (613) 691-1224 Tel: (613) 241-6789 Ext : 228 Fax: (613) 691-1338 Fax: (613) 241-5808 E-mail:[email protected] E-mail:[email protected]

Counsel for the Intervener Assembly Ottawa Agent for the Intervener Assembly of of First Nations First Nations

NG ARISS FONG SUPREME ADVOCACY LLP Suite 800 – 555 West Georgia Street 100 – 340 Gilmour Street VANCOUVER BC V6B 1Z5 OTTAWA ON K2P 0R3

Lisa C. Fong Marie-France Major Tel: (604) 331-1155 Tel: (613) 695-8855 Ext : 102 Fax: (604) 677-5410 Fax: (613) 695-8580 E-mail:[email protected] E-mail:[email protected]

Counsel for the Intervener Heiltsuk Ottawa Agent for the Intervener Heiltsuk Tribal Council Tribal Council

RATCLIFF & COMPANY SUPREME ADVOCACY LLP 221 West Esplanade, Suite 500 100 – 340 Gilmour Street NORTH VANCOUVER BC V7M 3J3 OTTAWA ON K2P 0R3

Gregory J. McDade, Q.C. Marie-France Major Michelle L. Bradley Tel: (613) 695-8855, Ext: 102 Tel: (604) 988-5201 Fax: (613) 695-8580 Fax: (604) 988-1452 E-mail:[email protected] E-mail:[email protected]

Counsel for the Intervener City of Ottawa Agent for the Intervener City of Burnaby Burnaby

OSLER, HOSKIN & HARCOURT LLP OSLER, HOSKIN & HARCOURT LLP Suite 2500, Trans Canada Tower Suite 1900 450 1st Street S.W. 40 Albert Street CALGARY AB T2P 5H1 OTTAWA ON K1R 7Y6

Maureen E. Killoran, Q.C. Geoffrey Langen Olivia Dixon Tel: (613) 787-1009 Tel: (403) 260-7003 Fax: (613) 235-2867 Fax: (403) 260-7024 E-mail:[email protected] E-mail:[email protected]

Counsel for the Intervener Ottawa Agent for the Intervener Trans Trans Mountain Pipeline ULC Mountain Pipeline ULC

OSLER, HOSKIN & HARCOURT LLP OSLER, HOSKIN & HARCOURT LLP Suite 2500, Trans Canada Tower Suite 1900 450 1st Street S.W. 40 Albert Street CALGARY AB T2P 5H1 OTTAWA ON K1R 7Y6

Maureen E. Killoran, Q.C. Geoffrey Langen Olivia Dixon Tel: (613) 787-1009 Tel: (403) 260-7003 Fax: (613) 235-2867 Fax: (403) 260-7024 E-mail:[email protected] E-mail:[email protected]

Counsel for the Intervener Ottawa Agent for the Intervener Enbridge Inc. Enbridge Inc.

MCCARTHY TÉTRAULT LLP GOWLING WLG (Canada) LLP Suite 2400 0 745 Thurlow Street 2600 – 160 Elgin Street VANCOUVER BC V6E 0C5 Box 466 Station A OTTAWA ON K1P 1C3 Nicholas Hughes Matthew Estabrooks Emily MacKinnon Tel: (613) 786-0211 Tel: (604) 643-5983 Fax: (613): 788-3573 Fax: (604) 622-5606 E-mail: [email protected] E-mail:[email protected]

Counsel for the Intervener Railway Ottawa Agent for the Intervener Railway Association of Canada Association of Canada

FASKEN MARTINEAU DUMOULIN FASKEN MARTINEAU DUMOULIN LLP LLP 1300 - 55 rue Metcalfe 2900 – 550 Burrard Street OTTAWA ON K1P 6L5 VANCOUVER, BC V6C 0A3 Sophie Arseneault D. Geoffrey G. Cowper, Q.C. Tel: (613) 236-3882 Stanley Martin Fax: (613) 230-6423 Daniel Byma E-mail:[email protected] Tom Posyniak Tel: (604) 631-3131 Ottawa Agent for the Intervener Fax: (604) 632-3232 Canadian Fuels Association E-mail:[email protected]

Counsel for the Intervener Canadian Fuels Association

WHITE RAVEN LAW CORPORATION GOWLING WLG (Canada) LLP 16541 Upper Beach Road 2600 – 160 Elgin Street Surrey, BC V3S 9R6 Box 466 Station D Ottawa, ON K1P 1C3 Terri-Lynn Williams-Davidson Elizabeth Bulbrook David Paterson Brian A. Crane, Q.C. Tel: (604) 536-5541 Tel: (613) 233-1781 Fax: (604) 536-5542 Fax: (613) 563-9869 E-mail: [email protected] E-mail:[email protected] [email protected] [email protected]

Counsel for the Intervener Little Ottawa Agent for the Intervener Shuswap Lake Indian Band Little Shuswap Lake Indian Band BLAKE, CASSELS & GRAYDON LLP GOWLING WLG (Canada) LLP 199 Bay Street 2600 – 160 Elgin Street Box 466 Suite 4000, Commerce Court West Station A TORONTO ON M5L 1A9 OTTAWA ON K1P 1C3

Catherine Beagan Flood D. Lynne Watt Peter W. Hogg Tel: (613) 786-8695 Laura Cundari Fax: (613) 788-3509 Christopher DiMatteo E-mail:[email protected] Tel: (416) 863-2269 Fax: (416) 863-2653 E-mail: [email protected]

Counsel for the Intervener Suncor Ottawa Agent for the Intervener Suncor Energy Energy Inc. et al. Inc. et al.

JFK LAW CORPORATION GOWLING WLG (Canada) LLP 816-1175 Douglas Street 2600 – 160 Elgin Street VICTORIA BC V8W 2E1 OTTAWA ON K1P 1C3 Robert Janes, Q.C. Guy Régimbald Ara Laskin Tel: (613) 786-0197 Tel: (250) 405-3460 Fax: (613) 563-9869 Fax: (250) 381-8567 E-mail:[email protected] E-mail:[email protected]

Counsel for the Intervener Beecher Bay Ottawa Agent for the Intervener Beecher Bay First First Nation et al. Nation et al.

LAWSON LUNDELL LLP GOWLING WLG (Canada) LLP 205 – 5th Avenue S.W. 2600 – 160 Elgin Street Suite 3700 Box 466 Station D CALGARY AB T2P 2V7 OTTAWA ON K1P 1C3 Brad Armstrong, Q.C. Matthew Estabrooks Lewis L. Manning Tel: (613) 786-0211 Tel: (403) 269-6900 Fax: (613): 788-3573 Fax: (403) 269-9494 E-mail: [email protected] Email: [email protected]

Counsel for the Intervener Canadian Ottawa Agent for the Intervener Canadian Association of Petroleum Producers Association of Petroleum Producers

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TABLE OF CONTENTS

PART I - OVERVIEW and STATEMENT OF FACTS ...... 1

A. Background facts relating to LSLIB...... 2

PART II – POSITION ON QUESTIONS RAISED...... 3

PART III –ARGUMENT...... 4

A. The three questions on this Reference...... 4

B. Jurisprudence recognizes pre-existing sovereignty of Indigenous Nations ...... 4

C. Honour of the Crown and Reconciliation...... 8

D. Cooperative federalism...... 9

E. Conclusion...... 10

PART IV – SUBMISSIONS ON COSTS...... 10

PART V – ORDER SOUGHT...... 10

PART VI – TABLE OF AUTHORITIES...... 11 1

PART I – OVERVIEW AND FACTS

Overview

1. This appeal has been framed as a contest between exclusive federal jurisdiction on one hand and concurrent provincial jurisdiction on the other. The questions referred to the Court by the Attorney General of British Columbia are premised on the concept that the jurisdictional field is either occupied exclusively by the federal jurisdiction or is shared at least in part with the provincial jurisdiction.

2. With respect, the intervener, Little Shuswap Lake Indian Band (“LSLIB”) submits that the Reference questions ignore the existence of other jurisdictional actors, namely, the Indigenous Nations within Canada. LSLIB submits that these Indigenous Nations represent independent jurisdictions under which Indigenous laws respecting the use of Indigenous territories can be passed, implemented and enforced. Accordingly, LSLIB submits that the Reference questions are incomplete.

3. Given the manner with which the Reference questions have been drafted and the record that has been amassed in response to those questions, LSLIB submits that this Reference is not the appropriate case to determine the nature, role and extent of Indigenous jurisdiction and laws or to how such Indigenous jurisdiction and laws can be reconciled with federal and provincial jurisdiction and laws respecting the same subject-matter.

4. Instead, LSLIB submits that this Court should explicitly reserve those questions regarding Indigenous law-making jurisdiction. LSLIB submits that this Court should clearly state that the Court’s judgment and reasons for judgment are restricted to the jurisdictional divisions (federal/provincial) within Her Majesty the Queen’s sovereignty and do not deal with the nature, role or extent of Indigenous jurisdiction and do not deal with the inter-relationship between Her Majesty’s sovereignty and the sovereignty of Indigenous Nations.

2

Background facts relating to LSLIB

5. LSLIB is an Indigenous Nation. In addition to being an Indigenous Nation, LSLIB is a “band” as that term is used in the Indian Act, R.S.C. 1985, c. I-5. LSLIB has about 350 members and has five reserves, located adjacent to or near the South , Little Shuswap Lake, Shuswap Lake, and Adams River in British Columbia. It has a council, headed by a Kukpi’7 (Chief) elected pursuant to LSLIB custom election bylaws.1

6. LSLIB is part of the Pespesellkwe (or in English the “Lakes Division”) of the Secwépemc Nation. It is one of five bands comprising the Pespesellkwe (the others being , , and Splatsin). The Pespesellkwe maintain they have aboriginal title and rights within the Secwépemc Territory (Secwepemcúlecw) and everything pertaining thereto. The Pespesellkwe maintain that they have used the lands and waters within the Secwepemcúlecw since time immemorial. They have never ceded sovereignty over these lands, their people or their governance. 2

7. LSLIB claims that its ancestors and its people have a claim to the aboriginal title to lands far beyond its reserves. These territories range from the in the west, the eastern foothills of the Rockies in the east, to the South Arrow and Slocan Lakes in the south and the Fraser and Smoky Rivers headwaters in the north. 3

8. LSLIB has had experience with a federal undertaking permanently impairing its members’ rights. A previous federal undertaking, the Canadian National Railway, accidentally blocked the Fraser River in 1913-1914 while “improving” its railway and this has resulted in “Hell’s Gate” or a permanent impairment of the Fraser River. The continued effect of that blockage was the total loss of the Upper Adams River sockeye run, then one of the biggest sockeye runs in the world. Despite investing hundreds of millions of dollars for

1 Affidavit of Chief Oliver Arnouse, sworn September 5, 2019 (“Arnouse Affidavit”), paras. 1 and 3, Appellant’s Record ("AR”), Vol. 12, p. 2298.

2 Arnouse Affidavit, para. 4, AR, Vol. 12, p. 2298.

3 Arnouse Affidavit, para. 5, AR, Vol. 12, p. 2299. 3

salmon enhancement in the Fraser watershed, the Upper Adams River sockeye run and many other salmon runs are still depleted.4

9. A spill down in the mouth of the Fraser River during the spawning of salmon or the running of salmon smolts could be disastrous for LSLIB’s aboriginal fishing rights exercised hundreds of kilometres inland where many salmon spawn and rear for the first year or more. LSLIB has historically relied on the salmon runs as an important food fishery.5

10. As the process of reconciliation slowly evolves, LSLIB intends to actively move towards more complete and comprehensive Indigenous governance and will ultimately seek determination of its claims to aboriginal title. Specifically, LSLIB intends on developing an Indigenous legal regime respecting the transportation of hazardous substances on its own or in conjunction with other Indigenous Nations.6

PART II – POSITION ON QUESTIONS RAISED

11. On the Reference questions posed to this Court, LSLIB takes the position that a more expansive understanding of cooperative federalism is likely to provide a better model for the future reconciliation sought with Indigenous Nations and jurisdictions.

12. That said, LSLIB urges the Court to explicitly reserve the question as to how Indigenous jurisdictions and Indigenous laws respecting the use of their territories will interact and coordinate with federal and provincial laws respecting the use of the same territories.

4 Arnouse Affidavit, para. 8, AR, Vol. 12, p. 2299.

5 Arnouse Affidavit, para. 7, AR, Vol. 12, p. 2299.

6 Arnouse Affidavit, paras. 9, 10, 11, and 12, AR, Vol. 12, p. 2299-2300. 4

PART III - ARGUMENT

The three questions on this Reference

13. The formal questions on this Reference have been formulated as follows:

a. Is it within the legislative authority of the Legislature of British Columbia to enact legislation substantially in the form set out in the attached Appendix?

b. If the answer to question (a) is yes, would the attached legislation be applicable to hazardous substances brought into British Columbia by means of interprovincial undertakings?

c. If the answers to questions (a) and (b) are yes, would existing federal legislation render all or part of the attached legislation inoperative?

14. These questions are focused on whether the “exclusive” federal jurisdiction over interprovincial undertakings oust the provincial attempt to regulate the undertaking. The questions as drafted do not admit consideration of any jurisdiction other than federal or provincial.

15. LSLIB submits that Indigenous Nations may well have their own laws that conceivably could overlay, coordinate with or even supplant those of the federal or provincials spheres. LSLIB will explain the basis for this submission below.

Jurisprudence recognizes pre-existing sovereignty of Indigenous Nations

16. In Haida Nation v. British Columbia (Minister of Forests), Chief Justice McLachlin bluntly stated for the Court: “[p]ut simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered”. 7

7 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, at para. 25.

5

17. Indeed, this Court has determined that the doctrine of terra nullius has no application in Canada: at the time of the arrival of the Europeans, the territories making up modern Canada were owned by the Indigenous Nations.8 Accordingly, one might argue that the Indigenous Nations of Canada represent the oldest root of the constitutional tree of Confederation.

18. In the early 1800’s, the the pre-existing sovereignty of Indigenous Nations was much more powerfully felt by the European and American states. The potency of Indigenous sovereignty resulted in Chief Justice Marshall in Worcester v. Georgia stating:

America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws….9 and later: The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed; and this was a restriction which those Europeans potentates imposed on themselves, as well as on the Indians. The very term “nation”, so generally applied to them, means “a people distinct from others”.10

19. These pronouncements of Chief Justice Marshall have found favour in Canadian courts, in one case only eight days after Confederation11.

8 Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (“Tsilhqot’in”), at para. 69.

9 Worcester v. Georgia, 31 U.S. 515 (1832) (“Worcester”), at p. 542.

10 Worcester, ibid, at p. 559.

11 Connolly v. Woolrich, (1867), 17 R.J.R.Q. 75 (Que.S.C.), a decision released by Justice Monk upholding a Cree law on July 9, 1867. See also Campbell v. British Columbia (Attorney General), 2000 BCSC 1123. 6

20. In Mitchell v. M.N.R., Chief Justice McLachlin made statements similar to those of Chief Justice Marshall. She stated for the majority:

Long before Europeans explored and settled North America, aboriginal peoples were occupying and using most of this vast expanse of land in organized, distinctive societies with their own social and political structures. The part of North America we now call Canada was first settled by the French and the British who, from the first days of exploration, claimed sovereignty over the land on behalf of their nations. English law, which ultimately came to govern aboriginal rights, accepted that the aboriginal peoples possessed pre-existing laws and interests, and recognized their continuance in the absence of extinguishment, by cession, conquest, or legislation: see, e.g., the Royal Proclamation of 1763, R.S.C. 1985, App. II, No. 1, and R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1103. At the same time, however, the Crown asserted that sovereignty over the land, and ownership of its underlying title, vested in the Crown: Sparrow, supra. With this assertion arose an obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation, a duty characterized as “fiduciary” in Guerin v. The Queen, [1984] 2 S.C.R. 335.

Accordingly, European settlement did not terminate the interests of aboriginal peoples arising from their historical occupation and use of the land. To the contrary, aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and were absorbed into the common law as rights, unless (1) they were incompatible with the Crown’s assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the government extinguished them: see B. Slattery, “Understanding Aboriginal Rights” (1987), 66 Can. Bar Rev. 727. Barring one of these exceptions, the practices, customs and traditions that defined the various aboriginal societies as distinctive cultures continued as part of the law of Canada: see Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313, and Mabo v. Queensland (1992), 175 C.L.R. 1, at p. 57 (per Brennan J.), pp. 81-82 (per Deane and Gaudron JJ.), and pp. 182-83 (per Toohey J.).12

21. While Chief Justice McLachlin spoke of the Indigenous laws being “absorbed into the common law as rights”, Chief Justice Dickson spoke of the separateness of Indigenous nations from the divided sovereignty that is the Canadian federation. In Mitchell v. Peguis, he opined that “[f]rom the Aboriginal perspective, any federal-provincial divisions that the

12 Mitchell v. M.N.R., 2001 SCC 33, at paras. 9-10; See also McLachlin J (as she then was) in dissent in R. Van der Peet, [1996] 2 SCR 507, at paras. 247-248. 7

Crown has imposed on itself are internal to itself and do not alter the basic structure of Sovereign-Indian relations.”13

22. One of the elements of the pre-existing Indigenous sovereignty, therefore, was the capacity of the Indigenous Nations to govern their peoples and lands by their own laws. There can be no doubt that these laws existed at the time of contact and, subject to certain exceptions, these laws continued beyond the assertion of Crown sovereignty, whether they be absorbed into the common law as rights or a legal expression of an Indigenous sovereignty separate from that of the divided sovereignty of the Canadian federation.

23. In Tsilhqot’in Nation v. British Columbia, this Court outlined some of the characteristics of aboriginal title. Specifically, it held that “[a]boriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.” (emphasis added)14 It is submitted the right to decide how the land is to be used or to manage the land is essentially a right to govern that land.

24. Thus, LSLIB submits that, both legally and factually, the Indigenous Nations of Canada exercised their own sovereignty at the time of arrival of the European states in North America and this included their self-governance through their own laws. This self- governance would also embrace the right to govern, through Indigenous laws, the right to use or manage the territories over which they hold aboriginal title. LSLIB submits further that that right of self-governance has not been ceded in its case and in the case of many other Indigenous Nations. The courts will have to deal with scope, nature and extent of the Indigenous jurisdiction to self-govern and to create, implement and enforce Indigenous laws in future cases.

13 Mitchell v. Peguis, [1990] 2 SCR 85 at pp. 108-109.

14 Tsilhqot’in, supra, at para. 73. 8

Honour of the Crown and Reconciliation

25. The pre-existence of the sovereignty of Indigenous Nations over their people and lands came face to face with the Crown’s assertion of sovereignty and de facto taking control over such Indigenous people and lands. This collision of sovereignties has resulted in the development of the doctrines of the honour of the Crown and reconciliation. This Court has recognized that when the British Crown asserted sovereignty over the Indigenous peoples and lands, that assertion was concomitant with the duties inherent with the honour of the Crown. A majority of this Court made this very point in Manitoba Metis Federation Inc. v. Canada (Attorney General):

The honour of the Crown arises “from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people”: Haida Nation, at para. 32. In Aboriginal law, the honour of the Crown goes back to the Royal Proclamation of 1763, which made reference to “the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection”: see Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 42. This “Protection”, though, did not arise from a paternalistic desire to protect the Aboriginal peoples; rather, it was a recognition of their strength. Nor is the honour of the Crown a paternalistic concept. The comments of Brian Slattery with respect to fiduciary duty resonate here:

The sources of the general fiduciary duty do not lie, then, in a paternalistic concern to protect a “weaker” or “primitive” people, as has sometimes been suggested, but rather in the necessity of persuading native peoples, at a time when they still had considerable military capacities, that their rights would be better protected by reliance on the Crown than by self-help.

(“Understanding Aboriginal Rights” (1987), 66 Can. Bar Rev. 727, at p. 753)

The ultimate purpose of the honour of the Crown is the reconciliation of pre- existing Aboriginal societies with the assertion of Crown sovereignty.15

26. This “endeavour of reconciliation” has been called by this Court “the first principle of aboriginal law”.16 The role of reconciliation and its companion doctrine of the honour of

15 Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para. 66.

16 Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 (“Mikisew”) at para. 22. 9

the Crown are informed further by s. 35 of the Constitution Act, 1982.17 Accordingly, pre- existing and unextinguished rights of self-governance may be constitutionally protected and, notwithstanding periods of time where such rights have not been exercised to their full extent, such rights may now be exercised and given full constitutional effect through s. 35.

27. Moreover, Canada is a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). Under UNDRIP, Indigenous peoples have “the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.”18 Under Article 26, Indigenous peoples have the right to the lands, territories and resources that they traditionally owned or occupied and they have the right to own, use, develop and control such lands, territories and resources. LSLIB submits that Canada’s obligations of reconciliation with its Indigenous Nations will be viewed through the prism of UNDRIP.

28. In the context of this Reference, LSLIB does not seek to have this Court determine whether Indigenous Nations have jurisdiction to create, implement and enforce Indigenous laws in relation to the lands over which they hold aboriginal title. Rather, LSLIB seeks to raise a plausible case that such Indigenous jurisdiction exists and that this Indigenous jurisdiction is concurrent with the jurisdiction of the federal Parliament and government and of the provinces. LSLIB submits that that plausible case has been made out.

Cooperative federalism

29. LSLIB has reviewed the factum of the intervener Haida Nation and adopts the arguments of the Haida Nation respecting cooperative federalism. In LSLIB’s submission, a more

17 Mikisew, ibid, at para. 24.

18 UNDRIP, Article 5.

11

PART VI – TABLE OF AUTHORITIES Paragraph(s) referenced in PART Jurisprudence I & III

Campbell v. British Columbia (Attorney General), 2000 BCSC 1123 19

Connolly v. Woolrich, (1867), 17 R.J.R.Q. 75 (Que.S.C.) 19

Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 16

Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 24 SCC

Mikisew Cree First Nation v. Canada (Governor General in Council), 25 2018 SCC 40

Mitchell v. M.N.R., 2001 SCC 33 20

Mitchell v. Peguis, [1990] 2 SCR 85 21

R. Van der Peet, [1996] 2 SCR 507 20

Sga’nism Sim’augit (Chief Mountain) v. Canada (Attorney General), 29 2013 BCCA 49

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 17, 22

Worcester v. Georgia, 31 U.S. 515 (1832) 18

Legislation

United Nations Declaration on the Rights of Indigenous Peoples, 26 Article 5 & 26 Déclaration des Nations Unies sur les droits des peuples autochtones, Article 5 & 26