Judgments

Decision Information

Baker Lake v. Min. of Indian Affairs & Northern Development

Collection Judgments
Date 1979-11-15
Report citation [1980] 1 F.C. 518
File numbers T-1628-78
Subjects Crown

Decision Content

T-1628-78
The Hamlet of Baker Lake, Baker Lake Hunters and Trappers Association, Inuit Tapirisat of Canada, Matthew Kunungnat, Simon Tookoome, Harold Qarlitsaq, Paul Uta'naaq, Elizabeth Alooq, Titus Alluq, Jonah Amitnak, Francis Kalu- raq, John Killulark, Martha Tickle, Edwin Eve, Norman Attungala, William Noah, Marion Pat- tunguyaq, Silas Kenalogak, Gideon Kuuk, Ovid Kinnowatner, Steven Niego, Matthew Innakatsik, Alex Iglookyouak, Titus Niego, Debra Niego, Ste- phen Kakimat, Thomas Anirngniq, Margaret Amarook, James Ukpaqaq, Jimmy Taipanak, Michael Amarook, Angela Krashudluaq, Margaret Narkjanerk, John Narkjanerk, Elizabeth Tunnuq, Marjorie Tarraq, Hanna Killulark, William K. Scottie, Edwin Niego, Martha Talerook, Mary Iksiktaaryuk, Barnabas Oosuaq, Nancy Sevoqa, Janet Ikuutaq, Marjorie Tuttannuaq, Luke Tung- naq, James Kingaq, Madge Kingaq, Lucy Tun- guaq, Hattie Amitnak, Magdalene Ukpatiky, Wil- liam Ukpatiku, Paul Ookowt, Louis Oklaga, H. Avatituuq, Luk Arngna'naaq, Mary Kakimat, Samson Arnauyok, Effie Arnaluak, Thomas Kaki- mat, Mathew Nanauq, John Nukik, Bill Martee, Martha Nukik, Silas Puturiraqtuq, David Mannik, Thomas Iksiraq, Robert Inukpak, Joedee Joedee, John Auaala, Hugh Tulurialik, Thomas N. Mannik, Silas Qiynk, Barnabus Peryouar, Betty Peryouar, Joan Scottie, Olive Innakatsik, Sarah Amitnak, Alex Amitnak, Vera Auaala, George Tataniq, Mary Tagoona, James Teriqa- niak, John Iqsakituq, Silas Kalluk, Hannah Kuuk, Hugh Ungungai, Celina Uta'naaq, Moses Nagyugalik, Mary Iqaat, Louis Tapatai, Harold Etegoyok, Sally Iglookyouak, Marjorie Aqigaaq, Matthew Aqigaaq, Mona Qiyuaryuk, Winnie Owingayak, Samson Quinangnaq, Elizabeth Qui- nangnaq, Hattie Attutuvaa, Paul Attutuvaa, Marion Anguhalluq, Luk Anguhalluq, Ruth Tulurialik, Irene Kaluraq, Charlie Toolooktook, Thomas Tapatai, Elizabeth Tapatai, B. Scottie, Mary Kutticq, Jacob Marriq, Lucy Kownak, A. Tagoona, Charles Tarraq, Vivien Joedee (Plain- tiffs)
v.
The Minister of Indian Affairs and Northern De velopment, the Engineer designated by the Minis ter of Indian Affairs and Northern Development
pursuant to section 4 of the Territorial Land Use Regulations, SOR/77-210, as amended, the Director, Northern Non-Renewable Resources Branch of the Department of Indian Affairs and Northern Development, the Mining Recorder and the Deputy Mining Recorder for the Arctic and Hudson Bay Mining District, the Attorney Gener al of Canada, Urangesellschaft Canada Limited, Noranda Exploration Company Limited, Pan Ocean Oil Ltd., Cominco Ltd., Western Mines Limited and Essex Minerals Company Limited (Defendants)
Trial Division, Mahoney J.—Baker Lake, North west Territories and Toronto, May 14-19, May 28, June 8 and August 7-11; Ottawa, November 15, 1979.
Crown — Prerogative writs — Declaration — Injunction — Plaintiffs asserting aboriginal title to lands in Northwest Territories — Orders or declarations sought (a) restraining government defendants from issuing land use permits, (b) restraining activities of corporate defendants, (c) declaring the Baker Lake Area to be subject to aboriginal title, (d) declaring these lands to be neither territorial nor public as defined by Territorial Lands Act or Public Lands Grants Act, (e) declar ing Parliament to be without jurisdiction to abrogate aborigi nal rights until terms of Imperial Order in Council admitting Rupert's Land to Canada fulfilled, and (f, as an alternative to (e), declaring that Parliament can only abrogate those rights by express legislation — Whether or not aboriginal title, if it existed, extinguished by Royal Charter of 1670, the Imperial Order in Council admitting Rupert's Land to Canada, or other subsequent legislation — Whether or not various Acts and regulations affecting the lands in question validly enacted — The British North America Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix 11, No. 51, s. 146 — Imperial Order in Council, R.S.C. 1970, Appendix II, No. 9, para. 14 The Royal Proclamation, R.S.C. 1970, Appendix II, No. I — Northwest Territories Act, R.S.C. 1970, c. N-22, s. 13 Public Lands Grants Act, R.S.C. 1970, c. P-29, s. 4 — Territorial Lands Act, R.S.C. 1970, c. T-6, ss. 3.1, 3.2, 4, 8, 14, 19 — Territorial Land Use Regulations, C.R.C. 1978, Vol. XVIII, c. 1524 — Canada Mining Regulations, C.R.C. 1978, Vol. XVII, c. 1516 — Federal Court Rules 482(1)(a),(b),(c), 2 (a), (b), (5).
Plaintiffs assert an existing aboriginal title over an undefined portion of the Northwest Territories around the community of Baker Lake. All defendants, both government and corporate, contend that if aboriginal title ever existed, it was entirely extinguished, if not by the Royal Charter of 1670 granting Rupert's Land to the Hudson's Bay Company, then by the admission of Rupert's Land into Canada, or by subsequent legislation. Defendants assert the validity of the Territorial
Lands Act, the Territorial Land Use Regulations, and the Canada Mining Regulations. Corporate defendants intend to continue their activities, and government defendants intend to permit existing authorization to continue and to issue new ones. Plaintiffs assert that the activities are unlawful invasions of their rights under the Inuit's aboriginal title. In particular, the right to hunt caribou is said to have been gravely impaired. Plaintiffs seek: (a) an order restraining government defendants from issuing land use permits, (b) an order restraining corpo rate defendants from carrying on such activities there, (c) a declaration that the Baker Lake Area is subject to the Inuit's aboriginal title, (d) a declaration that these lands are neither territorial nor public lands as defined by the Territorial Lands Act and the Public Lands Grants Act nor subject to the Canada Mining Regulations, (e) a declaration that Canada lacks legis lative jurisdiction to abrogate Inuit aboriginal rights until the terms of the Imperial Order in Council admitting Rupert's Land into Canada are fulfilled, (f), (as an alternative to (e)), a declaration that until aboriginal rights are expressly abrogated by Parliament, no one is entitled to deal with the Baker Lake Area in a manner inconsistent with those rights, and (g) a declaration that the Inuit resident in the Baker Lake Area have "rights previously acquired" and are "holders of surface rights" within the meaning of mining laws. All defendants seek dismis sal of the action. Corporate defendants, in addition, counter claim for declarations that the lands within the Baker Lake Area are "territorial" and "public" lands, and that the Inuit resident there do not have "rights previously acquired" and are not "holders of surface rights". Plaintiffs assert that the order joining defendant companies prohibits a claim for relief by counterclaim.
Held, plaintiffs are entitled to a declaration that the lands described are subject to the aboriginal right and title of the Inuit to hunt and fish thereon, but the action is otherwise dismissed. There is solid authority for the general proposition that the law of Canada recognizes the existence of an aborigi nal title, arising out of the common law and independent of The Royal Proclamation or any other prerogative act or legislation. When England asserted sovereignty over the barren lands, the Inuit were its exclusive occupants with an aboriginal title vested in common law and carrying with it the right to move about and hunt and fish over that territory. The grant of title to the Hudson's Bay Company defined its ownership of the land in relation to the Crown but did not extinguish aboriginal title. The coexistence of the communal right of aborigines to occupy land with the radical title of the Crown is characteristic of aboriginal title, and the Company in its ownership of Rupert's Land, aside from its trading posts, was very much in the position of the Crown. Its occupation of the territory in issue was, at most, notional. Its Royal Charter did not extinguish aboriginal title in Rupert's Land and the Act of Parliament affirming that charter had no bearing on the issue. The Imperi-
al Order in Council admitting Rupert's Land to Canada had no effect on aboriginal title; it neither created nor extinguished rights or obligations vis-à-vis the aborigines, nor did it, through section 146 of The British North America Act, 1867, limit the legislative competence of Parliament. The Inuit's aboriginal title has not been extinguished by surrender. Parlia ment has not enacted legislation expressly extinguishing that title. Parliament's intention to extinguish an aboriginal title, however, need not be set forth explicitly in the pertinent legislation. Once a statute has been validly enacted, it must be given effect, even if it abridges or entirely abrogates a common law right. Of all the legislation said to affect aboriginal title, section 4 of the Territorial Lands Act authorizing the sale, lease or other disposition of territorial lands, and providing for limits and conditions of such disposition, is the key. Disposi tions of the sort and for the purposes that Parliament might reasonably have contemplated in the barren lands are not necessarily adverse to the Inuit's aboriginal right of occupancy. Extinguishment of the Inuit's aboriginal title is not a necessary result of legislation enacted since 1870. The aboriginal title in issue has not been extinguished. With the exception of a few parcels of land, the entire territory in issue remains "territorial lands" within the meaning of the Territorial Lands Act and "public lands" within the meaning of the Public Lands Grants Act, and is subject to the Canada Mining Regulations. To the extent that competent legislation diminished the rights com prised in an aboriginal title, that legislation prevails. Defendant mining companies are not entitled to claim relief by way of counterclaim by reason of the order by which they were joined as parties defendant; that order was silent as to counterclaims. The interim injunction issued April 24, 1978, is dissolved.
Sigeareak E1-53 v. The Queen [1966] S.C.R. 645, applied. In re Southern Rhodesia [1919] A.C. 211, distin guished. Calder v. Attorney-General of British Columbia [1973] S.C.R. 313, applied. Kruger v. The Queen [1978] 1 S.C.R. 104, applied. Amodu Tijani v. The Secretary, Southern Nigeria [1921] 2 A.C. 399, considered. Mitchel v. The United States (1835) 9 Peters 711, considered. Worcester v. The State of Georgia (1832) 6 Peters 515, referred to. United States of America v. Santa Fe Pacific Railroad Co. (1941) 314 U.S. 339, referred to. Sikyea v. The Queen [1964] S.C.R. 642, considered. St. Catherine's Milling and Lumber Co. v. The Queen in right of Ontario (1889) XIV App. Cas. 46, considered. Milirrpum v. Nabalco Pty. Ltd. (1970) 17 F.L.R. 141, considered. Regina v. Derriksan (1977) 71 D.L.R. (3d) 159, applied.
ACTION. COUNSEL:
Aubrey E. Golden, David Estrin and R. K. Timberg for plaintiffs.
L. P. Chambers and D. T. Sgayias for govern ment defendants.
W. C. Graham, Q.C. and R. W. Cosman for defendants Pan Ocean Oil Ltd., Cominco Ltd. and Western Mines Limited.
T. G. Heintzman and M. M. Koenigsberg for defendants Urangesellschaft Canada Limited and Noranda Exploration Company Limited.
L. Price for defendant Essex Minerals Com pany Limited.
SOLICITORS:
Golden, Levinson, Toronto, for plaintiffs.
Deputy Attorney General of Canada for gov ernment defendants.
Fasken & Calvin, Toronto, for defendants Pan Ocean Oil Ltd., Cominco Ltd. and West ern Mines Limited.
McCarthy & McCarthy, Toronto, for defend ants Urangesellschaft Canada Limited and Noranda Exploration Company Limited.
Campbell, Godfrey & Lewtas, Toronto, for defendant Essex Minerals Company Limited.
The following are the reasons for judgment rendered in English by
MAHONEY J.:
INTRODUCTION
The plaintiffs assert an existing aboriginal title over an undefined portion of the Northwest Terri tories of Canada including approximately 78,000 square kilometers around the community of Baker Lake. That specified area is hereinafter called the "Baker Lake Area". The boundaries of the Baker Lake Area coincide with the boundaries of the lands withdrawn from disposal under the Territo rial Lands Act' by Order in Council P.C. 1977- 1153. 2 The boundaries are set forth in Schedule "A". Schedule "B" is a map of Canada indicating the location of the Baker Lake Area. Schedule "C" is a map of most of the District of Keewatin indicating locations of the more important geo graphic features hereinafter referred to.
' R.S.C. 1970, c. T-6.
2 C.R.C. 1978, Vol. XVIII, c. 1538.
The plaintiffs, The Hamlet of Baker Lake, the Baker Lake Hunters and Trappers Association and Inuit Tapirisat of Canada are all incorporated entities. The other plaintiffs are individual Inuit who presently live, hunt and fish in the Baker Lake Area.
The defendants, other than the Attorney Gener al of Canada and the mining companies, are the Minister of Indian Affairs and Northern Develop ment and certain officers of the Government of Canada responsible, under him, for the adminis tration of mining laws in the Northwest Territo ries. The Minister and his officials, along with the Attorney General of Canada, who is sued as repre sentative of Her Majesty the Queen in right of Canada, are hereinafter collectively called the "government defendants". The defendants, Uran- gesellschaft Canada Limited, Noranda Explora tion Company Limited (no personal liability), Pan Ocean Oil Ltd., Cominco Ltd., Western Mines Limited and Essex Minerals Company Limited, are hereinafter collectively called the "defendant mining companies". They are not necessarily the only persons or entities carrying on mining exploration activities in the Baker Lake Area; rather they are the only ones who applied to be joined as parties defendant to the action. That application was granted on agreed terms.
The government defendants admitted in plead ing that the individual plaintiffs and their prede cessors have occupied and used the Baker Lake Area since time immemorial and sought to with draw that admission at the close of evidence and, I note, did not repeat it in the further amended statement of defence filed after the trial. The defendant mining companies made no such admis sion and disputed the existence ever of an aborigi nal title in the individual plaintiffs or their ances tors. All defendants say that, if an aboriginal title ever existed, it was entirely extinguished, if not by the Royal Charter of 1670 granting Rupert's Land to the Hudson's Bay Company, then by the admis sion of Rupert's Land to Canada, or by subsequent legislation.
The defendants assert the validity of the Terri torial Lands Act, the Territorial Land Use Regulations 3 and the Canada Mining Regulations 4 and that those laws, hereinafter gen erally referred to as the "mining laws", have full force and effect in the Baker Lake Area. In the conduct of their activities there, the defendant mining companies say that they have and will comply with the conditions attached to various authorizations obtained from the government defendants, other than the Attorney General, where such are required by the mining laws. They also have and intend to continue to conduct other activities for which no authorization is required by the mining laws. For their part, those government defendants intend to continue to issue required authorizations and to permit those existing to remain in force in accordance with the mining laws. The plaintiffs assert that the activities so permitted are unlawful invasions of their rights under the Inuit's aboriginal title. In particular, the right to hunt caribou is said to have been gravely impaired thereby.
The relief sought by the plaintiffs, in summary, is:
(a) an order restraining the government defend ants from issuing land use permits, prospecting permits, granting mining leases and recording mining claims which would allow mining activi ties in the Baker Lake Area;
(b) an order restraining the defendant mining companies from carrying on such activities there;
(c) a declaration that the lands comprising the Baker Lake Area are "subject to the aboriginal right and title of the Inuit residing in or near that area to hunt and fish thereon";
(d) a declaration that the lands comprising the Baker Lake Area are neither "territorial lands" nor "public lands" as defined respectively in the Territorial Lands Act and the Public Lands
' C.R.C. 1978, Vol. XVIII, c. 1524. 4 C.R.C. 1978, Vol. XVII, c. 1516.
Grants Act 5 nor subject to the Canada Mining Regulations;
(e) a declaration that, until such time as the terms of the Imperial Order in Council 6 which admitted Rupert's Land into Canada are ful filled by Canada, Canada lacks legislative juris diction to abrogate Inuit aboriginal rights in the Baker Lake Area;
(f) as an alternative to (e), a declaration that, until such aboriginal rights are expressly abro gated by Parliament, no one is entitled to deal with the Baker Lake Area in a manner incon sistent with Inuit aboriginal rights, notwith standing other statutory authority;
(g) a declaration that the Inuit resident in the Baker Lake Area have "rights previously acquired" and are "holders of surface rights" within the meaning of the mining laws with respect to the Baker Lake Area;
(h) costs.
I am conscious that, throughout the statement of claim, the term "Baker Lake Area" is used to embrace a broad, undefined territory inclusive of the defined area to which I have applied it. I saw no need to be meticulous about that distinction in the foregoing summary.
The government defendants ask that the action be dismissed with costs. The defendant mining companies ask that the action be dismissed and some, by counterclaim, for declarations that the lands within the Baker Lake Area are "territorial" and "public" lands and that the Inuit resident there do not have "rights previously acquired" and are not "holders of surface rights". They also challenge the jurisdiction of this Court to grant the declaratory relief sought against them. The plain tiffs assert that the terms of the order by which the defendant mining companies were joined as parties defendant prohibit a claim for relief by counter claim. All defendants challenged, in argument but not in pleadings, the status of the corporate plain tiffs to maintain the action.
5 R.S.C. 1970, c. P-29.
6 R.S.C. 1970, Appendix II, No. 9.
In reviewing the evidence, I intend first to describe the geography of the Baker Lake Area and its environs and then its occupation by humans from prehistoric times to the present. Finally, I will deal with current mining activity and its effect on the caribou and the Inuit's hunting of them. It is to be noted that the Inuktutuk word "Inuit" has only rather recently gained currency and that pre viously "Eskimo", variously spelled, an adaption of an Algonquin word, was the accepted English term for the Inuit. I shall use "Inuit" wherever possible. It means "the people".
THE BARREN LANDS
The "barren lands" is the name applied to that part of the interior of mainland Canada lying north and east of the tree line which meanders from Hudson Bay, north of Churchill, Manitoba, to the Mackenzie River delta north of Inuvik, Northwest Territories. They are strewn with lakes and laced by rivers and streams. The Baker Lake Area lies entirely within the barren lands. The hamlet, roughly in the centre of the Area, is on the lake's north shore toward its west end, a few kilometers from the mouth of the Thelon River.
Schultz, Aberdeen and Beverly Lakes are strung upstream along the Thelon. The Dubaunt River enters Beverly Lake from the south, upstream are Marjorie and Wharton Lakes, within the Area, and Grant and Dubaunt Lakes, outside it. The Kazan River enters Baker Lake from the south, across from and some distance east of the hamlet; a short distance upstream are Kazan Falls and Thirty Mile Lake, within the Area, and further along, outside it, are Yathkyed and Angikuni Lakes. Upstream on the Kunwak River system, which joins the Kazan from the west at Thirty Mile Lake, are Princess Mary, Mallery and Tebes- juak Lakes, all within the Area. Christopher Island is at the east end of Baker Lake which drains eastward into Chesterfield Inlet and Hudson Bay. The Back River, which flows into Chantrey Inlet and the Arctic Ocean, drains the territory northwest of the Area, including Garry and Sand Lakes. The Ferguson River drains the
southerly extremity of the Area, including Kaminuriak Lake, into the Hudson Bay.
The vicinities of Kazan Falls, Christopher Island, and the lakes within the Baker Lake Area, were identified by the Inuit as places where they have recently hunted caribou. Before their settle ment, they hunted around all the lakes mentioned, both within and without the Area, and many more.
The tree line is a band of varying width across which the vegetation changes from that of the boreal forest to that of the tundra. The end of growth of spruce trees marks the edge of the boreal forest. The willows beyond are considered to be bushes rather than trees. Clumps of spruce can be found well north of the tree line but not forests of them.
The tree line has not, over centuries, been sta tionary. It moves with long term climatic changes. The boreal forest appears to have reached its maximum northern penetration, in the area with which this action is concerned, about 6,000 years ago, when it reached the Thelon River valley. It retreated southward after 1500 B.C. and was again north of its present position by 1100 A.D. It is postulated that the location of the tree line at a given time was significant in determining the degree of penetration of what is now barren land in and near the Baker Lake Area by Indians who normally lived in the boreal forest and, on the other hand, the degree of occupation of that same territory by Inuit.
While there are other food resources, including fish and muskox, the evidence was, for all practical purposes, entirely of the caribou. It is the key to human survival on the barrens. Its availability was the only reason for Indian penetration of the bar rens and for the survival of the plaintiffs' ancestors living there year round.
THE PREHISTORIC PERIOD
The Court was fortunate to have the evidence of two leading archaeologists who have actually worked in and around the Baker Lake Area. They
are Dr. Elmer Harp, Jr., Professor Emeritus of Archaeology at Dartmouth College, Hanover, New Hampshire and Dr. J. V. Wright, Head of the Scientific Division of the Archaeological Survey of Canada, part of the National Museum of Man. Their professional qualifications are impeccable. Dr. Wright's evidence was admitted as rebuttal evidence only. He did not cast any doubts on the validity of Dr. Harp's overview of the Inuit occupation of the North American Arctic generally but, rather, dealt with the crucial ques tion of the extent, if any, of Inuit occupation of the Baker Lake area prior to the historic period.
The first population of Arctic North America is believed to have begun with a migration from Siberia to Alaska 45,000 or so years ago and to have progressed eastward in the succeeding mil lennia. The earliest identified human manifesta tion in Canada's central and eastern Arctic is labelled the pre-Dorset culture, the later Dorset culture having been identified earlier. Needless to say, all dates postulated are highly approximate. The pre-Dorset period extended from around 2000 to 1000 B.C. The pre-Dorset culture was oriented to the land rather than the sea. Most known pre-Dorset sites are in the interior and the evi dence found indicates an emphasis on caribou hunting. The pre-Dorset people cannot be positive ly identified as Inuit; they left no skeletal remains. The ensuing Dorset culture, from 1000 B.C. to 800 A.D., disclosed a strong orientation to the hunting of sea mammals, on land and on the ice. Most known sites are coastal. The little bit of skeletal evidence available leads to the conclusion that the Dorset people were Inuit. It appears that, seasonal ly, the Dorset Inuit also hunted caribou inland. The Thule culture began in Alaska around 1000 A.D. and spread rapidly eastward until, between 1200 and 1400, it had absorbed or eliminated the Dorset culture. The Thule culture was marked by advanced navigation, larger boats and the hunting of large sea mammals on the water and, for the first time, the use of dogs as traction animals. The people of the Thule culture were Inuit. They, too, hunted caribou inland seasonally.
Around 1400 something happened; there are various theories but no consensus as to what it was. The Thule people appear to have retreated west ward leaving small groups thinly scattered about the central and eastern Arctic. There is evidence of overlapping occupation of some places by the Dorset and Thule Inuit. Dr. Harp's theory is that the Thule Inuit assimilated the Dorset Inuit over a period of time. In any event, it is generally agreed that the Thule Inuit are the direct ancestors of the Caribou Eskimos.
The prehistoric ancestors of the Algonquin- speaking Indians, including the Chipewyan, moved northward from the American plains with the post-Ice Age deglaciation. They adapted to life in the boreal forest and also hunted caribou on the barrens seasonally.
In the summer of 1958, Dr. Harp and a col league made the first extensive archaeological reconnaissance of the Thelon River country west of Baker Lake. They discovered forty-two sites of archaeological significance and investigated four previously known sites. All were located at or near major caribou water crossings; ten at the westerly end of Baker Lake, twelve on Schultz Lake, nine around Aberdeen Lake, thirteen on Beverly Lake and two on Grant Lake. The two most westerly sites on Beverly Lake appear to be outside the Baker Lake Area. The other sites, from east to west, on Baker, Schultz and Aberdeen and the easterly portion of Beverly Lake, were all within the Area. Grant Lake is outside it.
Not all of the sites yielded sufficient evidence to permit classification. Four, all at the west end of Baker Lake, are identified, by Dr. Harp, as belonging to the pre-Dorset stage. He found no evidence anywhere of Dorset Inuit occupation. Six sites are identified as Thule Inuit. Eighteen of the sites are identified as having been occupied by prehistoric Indians at two distinct stages of cultur al development. Twelve of those sites were
occupied by Indians still closely connected to the culture of the grasslands while the rest were sites of Indians well adapted to the boreal forest. The Grant Lake sites were both Indian. No Indian sites were identified on Baker Lake. Both Thule Inuit and Indian sites were classified on the remaining lakes although the Indian sites on Schultz Lake, the most easterly next to Baker Lake, were all of the earlier period. The sites were of two kinds and Thule Inuit and Indians occupied both kinds. About half of the classified sites had been subject of more or less lengthy, which is not to say contin uous, occupation while the balance were "lookout- workshop sites" where hunters would wait for game and pass the time making quartzite points for their weapons.
Dr. Harp's conclusions, to the extent they are relevant to this action, were that the Thelon area had not been inhabited until sometime after 3000 B.C. and that it was thereafter occupied, in sequence, by:
a. Early Indian hunters exhibiting limited trait diffusion from Archaic Stage bison-hunting cultures on the High Plains.
b. Pre-Dorset Eskimos from the central arctic region.
c. Later Archaic stage Indian hunters from the interior.
d. Eskimos of the Thule culture.
e. Recent Caribou Eskimos.
Dr. Harp also concluded that the Caribou Eskimos are the descendants of the Thule Inuit and that, prior to the Caribou Eskimos, "all of those occupa tions were sporadic and based primarily on the summer hunting of caribou".
The term "Caribou Eskimos" is used to distin guish Inuit who habitually lived inland from others who ordinarily lived on the coast. With a few exceptions, the individual plaintiffs and their ancestors, for as far back as the evidence can be treated as reliable, are and were Caribou Eskimos. The term has no ethnic connotation. It had great significance in the context of an earlier theory, no longer current largely as a result of Dr. Harp's work, that at least some Eskimos had originated inland and migrated to the coast, those remaining behind being the Caribou Eskimos. All Inuit, from Alaska to Greenland, constitute a discrete ethnic group.
Dr. Wright's work was undertaken after Dr. Harp's and, in many ways, was its direct follow up. He has had the advantage of applying radiocarbon dating techniques to some of his artifacts. Regret tably, that process is far from finished. He under took major excavations at Grant Lake, at the extreme west end of Aberdeen Lake and on the lower reaches of the Back River near Chantrey Inlet, some distance north of the Baker Lake Area. In so far as Grant and Aberdeen Lakes were concerned, all evidence of an Inuit presence per tained to the 19th and 20th centuries. Evidence indicates an Indian presence from 500 B.C. through the late 18th century. The survey north of the Baker Lake Area disclosed nothing but evi dence of continuous Inuit occupation. The evi dence thinned rapidly as the distance from the coast increased. With reference to Dr. Harp's work on Schultz Lake and the eastern end of Aberdeen Lake, Dr. Wright's opinion was that only Indian occupation, seven or eight thousand years ago, was proved. The evidence of later pre historic human occupation was conclusive but insufficient to assign it to Inuit or Indian. He agreed that the Baker Lake evidence all pointed to exclusive prehistoric Eskimo occupation but did not accept that it proved continuous in situ de velopment from Thule Inuit to Caribou Eskimo.
The process by which Dr. Harp arrived at the conclusion that such in situ development had occurred is set out at page 68 of his published report.' It must be read in the context of its principal objective, namely the refuting of the earlier theory that Eskimos, or Inuit, originated inland and moved coastward. He was, at the time, directing his mind to the origins of the Caribou Eskimos, not to the nature and extent of the occupation of a particular area, in competition with the Indians, by either Thule Inuit or Caribou Eskimos. When his mind was focused on the issue at the trial, Dr. Harp had this to say: *
' The Archaeology of the Lower and Middle Thelon, North west Territories, Arctic Institute of North America, Technical Paper No. 8, December, 1961.
* Transcript, Vol. IX, pp. 1195 ff.
In my own mind I consider the Northern Arctic Tundra, lying above the tree line, to be essentially Eskimo country. In my opinion, it has been the Indian people in the past who, I would regard, as the intruders of that country. Maybe I am overstat ing that case. Maybe one, to be fairer, ought to admit that both of these peoples have, from time to time, penetrated this transitional zone so as to exploit it for their own cultural purposes. ... In the final analysis, both of them have not been able to maintain successfully, for any significant length of time, permanent occupation in this country. They have each had to retreat or withdraw, whether southward or northward, out to the coast, to more congenial environments, which they knew how to cope with and exploit with a greater degree of success.
THE HISTORIC PERIOD
History around Baker Lake began with Henry Hudson's voyage into Hudson and James Bays in 1610 and 1611. That voyage constituted the basis for England's claims to that part of Canada. It did not record the observation of human habitation anywhere near Chesterfield Inlet.
The Baker Lake Area lies within the former proprietary colony of Rupert's Land, the territory granted to the Hudson's Bay Company by Royal Charter of Charles II May 2, 1670. It is common ground that Rupert's Land was a settled colony, rather than a conquered or ceded colony. It is to be noted that the particular legal consequences of settlement, as distinct from conquest or cession, in so far as the domestic laws of a colony were concerned, was not articulated in a reported case until 1693. 8 The distinction developed in response to the needs of the English settlers and was not, in its early development, extended to the resolution of disputes involving the indigenous population. I am bound to hold that The Royal Proclamation of 1763 9 does not and never did apply to Rupert's Land. '°
Subsequent to the admission of Rupert's Land to Canada in 1870, portions of its territory have been subject of a number of treaties between the aborigines and governments, most recently the James Bay Agreement in 1976. The only settle ment that occurred before 1870 was subject of the
s Blankard v. Caldy 90 E.R. 1089; also 87 E.R. 359, 90 E.R.
445 and 91 E.R. 356.
9 R.S.C. 1970, Appendix II, No. 1.
10 Sigeareak E1-53 v. The Queen [1966] S.C.R. 645.
Selkirk Treaty in 1817. While no such treaties are in evidence, it would appear to have been company policy, as early as 1683, to obtain land required for trading posts by treaty."
The first European penetration of the Baker Lake Area occurred in August, 1762. The sloop Churchill and the cutter Strivewell, under com mand of William Christopher and Moses Norton, respectively, out of Prince of Wales' Fort, i.e. Churchill, Manitoba, entered Baker Lake through Chesterfield Inlet. The journals of Christopher and Norton, required by the Company to be kept, repose in the archives of the Hudson's Bay Com pany in Winnipeg. Photographic copies of the entire journals are in evidence. The Court is indebted to the Company's archivist, Shirley Ann Smith, for reading into the record pertinent por tions of the journals. They are difficult for the untrained to read.
According to Christopher's journal, at 5 a.m., August 8, he determined that the body of water they were on was entirely fresh, with no tidal action. He named it Baker's Lake. They appear to have concentrated their efforts on finding a navi gable outlet northward from the lake, probably around what is now Christopher Island, rather than exploring the lake proper. On August 11, Strivewell was detached to explore where it was too shallow for Churchill. In the late afternoon of August 12, an Inuit encampment of two tents with two men, two women and seven children was encountered. It was at a place where there was tidal action, whether within or just outside the Baker Lake Area is not clearly established by the evidence. Strivewell proceeded up the channel it was exploring and, on returning, the encampment was again visited and presents given. The Inuit had nothing to trade. It is to be noted that, among other things, Christopher and Norton were looking for signs of mineral deposits. They recorded no contact with Indians.
The next European, also an agent of the Com pany, to visit the Baker Lake Area was Samuel Hearne in 1770. By consent, a photocopy of chap
" E. E. Rich, Hudson's Bay Company 1670-1870, Toronto, McClelland and Stewart Limited, 1960, pp. 62-63, 102, 109, 145.
ters II and III of an edited and published version of his journal was received in evidence. On Febru- ary 23, he set out overland from Prince of Wales' Fort on his second attempt to discover the copper deposits reported to be on the Arctic coast. He had in his company five Cree Indians. On that journey, Hearne's party penetrated the southwesterly por tion of the Baker Lake Area. The party approached it from the south reaching what was probably the Kazan River between Angikuni and Yathkyed Lakes on June 30. They were ferried across the river by strange Indians who "resided" on the north side of the river. On July 6, they moved on to the north up the west side of Yathkyed Lake. On July 22, they met more strange Indians. By then, they were, in all proba bility, within the Baker Lake Area. The party passed between Mallery and Tebesjuak Lakes, both within the Baker Lake Area, before July 30 when they turned westward. On that date, Hearne was convinced by his guide that it was too late in the season to attempt to reach the Arctic coast and that they should winter with the strange Indians who were still in their company. On July 30, there were at least 600 Indians in the group. The entire party proceeded west, out of the Baker Lake Area, on a path that took them between Tebesjuak and Wharton Lakes. His crossing of the Dubaunt River, sometime before August 6, must have been at a point outside the Area. They did not again approach the Baker Lake Area. On August 11, Hearne's quadrant was broken and, with his Cree, he returned to Prince of Wales' Fort, circling west around Dubaunt Lake and then southeasterly. Hearne recorded no encounter with Inuit on this journey as he did on others.
It is an historic fact that, at the time of Hearne's explorations, the Indians and Inuit were mortal foes and that the Indians, who had been provided firearms, had every advantage when they clashed. It is likewise an historic fact that the Indians were extremely susceptible to European diseases, notori ously smallpox. The smallpox epidemic that deci mated the Chipewyan, the "strange Indians" encountered by Hearne, occurred in 1780; that which decimated the Cree occupying territory to the south of the Chipewyan, occurred earlier. It is
fair to assume that once Indians had been drawn into the fur trade, they would seek to occupy territory where the fur harvest would be better and that, by and large, the further one proceeded through the boreal forest toward the barrens, the less productive the hunt. Finally, it is an historic fact that no white settlement occurred in the Baker Lake Area until a Hudson's Bay post was estab lished, at or near the present townsite, in 1914.
BEFORE THE SETTLEMENT
The Inuit witnesses, other than William Scottie, aged 22, all had a personal recollection of life before their settlement. Some spent many years of their adult life on the barrens, others moved to the hamlet with their families in their late teens. They spoke, as well, of the experiences of their forefa thers. Their evidence, and that of Superintendent Dent, is complementary.
Aside from a handful employed in the settle ment, the Inuit of the detachment area were nomads less than a quarter century ago. They hunted caribou in small camps of two or three families. The camps were units of a larger band level society consisting of a few hundred persons in many camps. Members of the same band spoke the same dialect, intermarried and exchanged hunting information among themselves more frequently than with members of other bands. If one camp met another, of the same or a different band, each made the other welcome but such aggregations did not last long. The exigencies of survival dictated a society composed of small scattered groups. The band itself had no political hierarchy; that existed only at the camp level. Major decisions all involved the hunt, conducted at the camp level, and were made by the oldest hunters. Neither individuals, camps nor bands claimed or recognized exclusive rights over a particular territory. The Inuit were few, the barrens were vast and they shared a single imperative: survival in a harshly inhospitable envi ronment. That demanded a high degree of toler ance of and cooperation with each other.
The caribou provided the necessities of life: food, clothing and shelter in the summer. Fish supplemented caribou as food for humans and dogs. Dogs provided transportation in the winter and food in an emergency. Canoes were used in the summer. Snow houses provided winter shelter. The movement of the caribou dictated the Inuit's summer movements. The location of caches dictat ed their winter migration. Encampments tended to be located where experience taught concentrations of caribou might be found in the summer because that was where the hunting was best and that was where the game was cached. Those concentrations occurred where the caribou had to cross a major body of water. Caribou were easier to overtake and kill with primitive weapons when swimming than when on dry land and, while the advent of firearms made a difference, the seasonal concentrations remained at major water crossings. Muskox, much scarcer than caribou, birds and eggs also provided food. The muskox also provided merchantable goods as did the fox and wolf. However, the cari bou was the staple. It shaped Inuit society on the barrens.
That the Inuit, before settlement, were a band level society is a conclusion of Dr. Milton J. Free man, an expert witness called by the plaintiffs. This aspect of his evidence will be considered at some length later in these reasons. William Noah and Simon Tookoome both said their fathers had been Illinlingmiut and their mothers Ukkusiksal- miut. Others referred to parents and grandparents as Hainingayormiut, Qaernermiut and Harvaqtor- miut. The list may not be exhaustive. The connota tion was entirely dialectic and geographic. They associated dialectic differences with particular geographic areas and the people who lived there but, to them, Inuit were Inuit and they plainly had no conception that the people who lived in a particular area and spoke the dialect associated with it constituted any sort of a tribe or political subdivision within the larger body of Inuit, "the people".
The historic and archaeological evidence con firm that the basic life style described by the Inuit witnesses, as prevailing before settlement, pre vailed as long as Inuit inhabited the barrens. That life style, in turn, is entirely consistent with the social and political order described by those wit nesses. The snowmobile was not a factor prior to settlement. The acquisition of firearms was prob ably the single most important development since the harnessing of dogs but it merely provided more and longer range missiles for the hunt. There is no evidence or reason to infer that the Inuit's nomadic ways, relationship to the land and social and politi cal order changed from prehistoric times until their settlement.
THE SETTLEMENT OF THE BAKER LAKE INUIT
Superintendent C. J. Dent arrived at Baker Lake as an R.C.M.P. constable in the fall of 1953 and was promoted to corporal and N.C.O. in charge of the detachment the following year. He served in that position until the summer of 1956 and, again, from the summer of 1958 until the summer of 1960. The detachment area, known as the E2 district, included almost the entire Baker Lake Area and much more, extending to the Dis trict of Mackenzie boundary on the west, beyond Kaminuriak Lake in the southeast and almost to the westerly end of Wager Bay in the northeast. When he arrived the settlement's population was between 40 and 50, of whom all but 17 were Inuit. There were a weather and a radio station, two church missions, the Hudson's Bay post and the R.C.M.P. detachment. All but one of the Inuit heads of family were employed by the various white establishments.
The population of the entire detachment area was slightly over 400. Those not employed in the community lived on the land. They were scattered over the entire detachment area in groups of one, two or three families living and travelling together. They were nomads. Routine reports for the period stress the difficulties inherent in locating them. Their cash income from trapping and hunting was, by then, augmented by the family allowance. Cash
notwithstanding, survival depended on the success ful hunting of game, principally caribou.
Conditions varied throughout the detachment area from year to year and season to season and from one part of the area to another. During the winter and spring of 1957-58, Inuit deaths in the vicinity of Back River and Garry Lake, the same general area to which two families have recently returned, were numerous and well publicized in southern Canada. The cause, directly or indirectly, was starvation. The government adopted a policy of actively encouraging the Inuit to leave the land and locate in settlements where starvation, at least, could be avoided. Housing was provided. Children were encouraged, if not compelled, to attend school. When Dent left in 1960, the community's population was between 150 and 200. The nursing station and school had been built and other facili ties expanded. That the policy succeeded is evi dent. Aside from two families recently returned to the land, aided by a new policy, all Inuit in the Baker Lake Area live in the hamlet. I infer, from its obvious profile, that the hamlet's Inuit popula tion today owes something to reduced infant mor tality, as well as to immigration from the land. With few exceptions, the immigrants originated within the detachment area, a good many of these within the Baker Lake Area.
THE COMMUNITY AND PEOPLE TODAY
The Baker Lake Area was defined after an extensive series of interviews with its resident Inuit commissioned by the defendant Minister. All those Inuit, at the time, regularly resided within the Hamlet of Baker Lake. The interviews were designed to ascertain where they hunted, fished and trapped. The boundaries were then defined to encompass that entire area. The evidence confirms the conclusion that the Baker Lake Area embraces generally the whole of the land upon which the Inuit resident there now regularly carry on those traditional activities. It is prescribed by the range of their gasoline-powered snowmobiles.
The caribou remains central to the existence of the Baker Lake Inuit. Its migrations dictated, almost totally, the traditional, nomadic, way of life of their ancestors. It provides both inspiration and raw materials for their contemporary art, a valu able economic as well as cultural activity. Its harvest continues to be an important element of their real income. When there is word of caribou in the vicinity, other activity is largely suspended and the men, including those employed at wages, go after the game. In season, the hunt is an almost universal male weekend activity. My impression is that ability to hunt caribou is a sine qua non of Inuit manhood; the degree of skill, a measure of that manhood.
The hamlet itself has a population of about 1,000, almost entirely Inuit, a very large propor tion of whom are children and teenagers. It has many of the attributes of any modern Canadian community of its size: an elementary school, nurs ing station, hotel, general store, a few churches and one R.C.M.P. officer. The Inuit live in small, conventional houses, rented from the government, of the sort and size to be seen on prairie Indian reservations. Some date back to the early days of settlement, 20 or so years ago, while others are quite new. Exterior conditions vary with age. I was not invited inside one. Municipal services include electricity, water delivery, waste disposal and a volunteer fire brigade with water tanks mounted on all-terrain vehicles. Bilingual, English and Inuktutuk, signs at the intersections of its gra velled streets control vehicular traffic consisting of numerous snowmobiles, four-wheel drive pickup trucks, motorcycles and all-terrain vehicles of all sizes and descriptions ranging from personal tricy cles to heavy duty transports and the airport bus. A modern building houses the studios and work shops of local artists and craftsmen and their co-operative retail outlet. Television, via satellite, consists of network programming of the Canadian Broadcasting Corporation and local programming from St. John's, Newfoundland. The FM radio station transmits local productions and CBC-FM programming. Three scheduled flights weekly con nect Baker Lake to southern Canada via Churchill and Winnipeg, Manitoba. The district hospital is at Churchill; the high school at Frobisher Bay.
Some of the observations above concerning the physical features, institutions and facilities of the community will not be found in the transcript of the evidence. They are among the gleanings of personal observation and inquiry during the week the Court spent in the community hearing the evidence of the Inuit witnesses. They are back ground information of a class known to the Courts about communities in southern Canada, not immediately relevant to the issues but helpful to an understanding of them. The acquisition by the Court of that background was a stated reason for the plaintiffs' and government defendants' request that the Court sit in Baker Lake. That request was acceded to before the defendant mining companies were joined. I feel I should be remiss if I did not record at least some of it.
Employment opportunities exist with many of the institutions mentioned above. As well, some, at least, of the defendant mining companies afford job opportunities. By far the largest single employ er is the municipal government. Ninety-five per cent of its revenue is grants received from senior governments. In all, there are not nearly enough jobs for the present adult population to say nothing of the needs of the young people expecting soon to enter the labour market and wanting to stay home. Young adults who have taken advantage of gov ernment programs to acquire vocational skills have returned to the hamlet to find no demand for those skills. There is a quiet, genuine element of despair for the future that lends authenticity to the nos talgia of the Inuit witnesses for their former life style as some of the older ones recall and the younger believe it to have been and as, in a limited way, they still experience it when they hunt the caribou. But for that underlying desperation, such nostalgia might appear, to a southern Canadian, at best perverse, at worst contrived; it is neither.
James Avaala and Bill Martee, both plaintiffs, are the Inuit who, with their families, do not now reside in the Hamlet of Baker Lake. Both men are about 30. The Avaalas have two children; the Martees one. In January, 1979, with government financial assistance, the two families returned to the land. They now live near Sand Lake in the northwesterly extremity of the Baker Lake Area. The Avaala, and I assume the Martee, family live in a 12' x 20' wooden house provided and airlifted to the site by the government. They are in two-way radio contact with Baker Lake. Oil and gas are subsidized but they must provide their other needs. Avaala seems to have been reasonably successful. Between his move in January, 1979, and his appearance as a witness May 16, 1979, he killed 20 or 25 caribou, one muskox, nine wolves and over 30 foxes.
Martee did not testify and there is little more in evidence about him except that he left the paying job of assistant secretary-manager of the munici pality to return to the land. Avaala has returned to the area of his birth which he first left, seasonally to attend school, in 1958. His parents moved to Baker Lake in 1968. He attended school in Baker Lake, Rankin Inlet and Churchill and, following his education, occupied various paid positions with government agencies and the Hudson's Bay Com pany. He left a job with the municipality in the fall of 1978 to return to the land. It is obvious that Avaala and Martee, in taking their families back to the land, are motivated by more than a concern for their immediate economic well-being. The life they have chosen is manifestly by no means as isolated, harsh and precarious as that of their parents but it is immeasurably more so than that they left behind in the community.
I have no doubt as to the sincerity of all the Inuit witnesses when they testified to their feelings about the land. I do not find it necessary to review all that evidence. It was not disputed. The actions of Avaala and Martee speak for all of them. Their attachment to the land and life on it is genuine and deep.
MINING ACTIVITY AND THE CARIBOU
The evidence as to the nature, extent and loca tion of mining activity was, by and large, adduced by way of admissions obtained on discovery. The individual plaintiffs also testified as to their obser vations. All activity, to date, has been exploratory. The current spate of activity began about ten years ago and has been generally accelerating since. It appears that the trend will continue for the next several years. Prospecting permits now outstanding to the defendant mining companies cover large blocks mainly in the southwesterly and northwest erly quadrants of the Baker Lake Area and small er blocks not far north of the hamlet. As a result of past preliminary exploration, the defendant mining companies have staked large blocks of claims to the south, the west and the northwest of the lake, extending from south of Christopher Island to north of Schultz and Aberdeen Lakes. Disregard ing the more sweeping claims to hunting grounds of individual Inuit, the blocks subject to prospect ing permits and mining claims still impinge upon or include the great majority of the places where the Inuit who testified have, in the recent past, hunted caribou.
The exploration work under prospecting permits is of three kinds: geological reconnaissance, geo- chemical sampling and geophysical survey. I doubt that any two exploration programs would be iden tical; however, the evidence satisfies me that the following descriptions are fairly typical today. The movement of personnel, equipment and supplies is by air. The aircraft used are most often helicop ters. Geological reconnaissance involves small par ties of geologists on the ground. They work within walking distance of their camps. They and their camps are frequently moved by aircraft. Geo- chemical sampling involves an aircraft setting down on a lake, dropping a dredge and taking samples of the water and bottom sediment. Sam ples may be taken at half-mile intervals and are removed for analysis elsewhere. A geophysical survey involves an aircraft flying a grid pattern over an area. Initially the lines flown may be a mile or more apart and the altitude four or five hundred feet above the ground but, if the area is
interesting, the grid may be flown on lines as close as an eighth of a mile apart at as little as one hundred feet. When work is done on the ground, grids are marked with stakes. Depending on the detail of the exploration, those stakes, two to three feet long, are driven into the ground at intervals of from 100 to 500 feet. To aid in spotting them, a few inches of bright, plastic ribbon is usually attached to the top of each. It flutters in any breeze. It rarely survives a winter and is known to have been eaten by caribou. The colour is of no significance to the caribou; they are colour blind.
Similar stakes are used to mark the boundary of a claim. If the results of the preliminary work in the area of a prospecting permit warrant, claims within that area are staked and a diamond drilling program is undertaken. Test holes are drilled to depths of several hundred feet. Such a program can extend over a number of seasons. The season for mineral exploration in the Baker Lake Area ordinarily runs from late May to late August.
In addition to the portable "fly camps" used for small ground crews, large base camps may accom modate as many as 30 or 40 people. While not occupied between August and the following May, they are not dismantled. Structures, equipment and caches of supplies may remain on site for several years. All movements in and out of these camps are by aircraft, frequently by helicopters. Notwithstanding regulations to the contrary and the efforts of the government defendants to police them, debris is frequently left at abandoned camp sites. Sometimes it is washed up on lake and river banks. Oil drums, propane tanks and, in one instance, a bulldozer were mentioned in evidence. Likewise, notwithstanding regulations, it is a prac tical impossibility to police aircraft altitudes over the caribou which are, even for the trained observ er, sometimes difficult to spot from the air.
Caribou herds are labelled by the area to which they customarily return annually to calve. The transfer of large numbers of caribou, 20 or 30 thousand, from one herd to another is an excep tional, but known, occurrence. The calving grounds of two major caribou populations lie partly within the Baker Lake Area. The Beverly herd migrates through the westerly and northerly portions of the area and the Kaminuriak herd through the southeasterly portion. The Kazan River marks the boundary between their usual ranges. A third population, not yet positively iden tified with a specific herd, has recently taken to wintering north of Baker Lake. A migrating cari bou herd is generally scattered thinly over many hundreds of square kilometers, concentrating only at major water crossings. Most major water cross ings extend for several kilometers along their lake or river shores.
Several Inuit hunters and field employees of the defendant mining companies testified as to the behaviour of caribou in relevant situations. Expert evidence was tendered by Dr. Valerius Geist, an ethologist or animal behaviour expert with a great deal of experience with other members of the deer family although not with barren ground caribou, called by the plaintiffs, and Frank Miller, M.Sc., a wildlife biologist with the Canadian Wildlife Ser vice, who has worked extensively with the Kaminuriak herd and other caribou, called by the government defendants. In addition, Dr. G. W. Kalef, wildlife biologist with the Wildlife Service of the territorial government was called by the government defendants, inter alia, to rebut Dr. Geist's criticism of the methodology used to arrive at the official estimates of the sizes of the Beverly and Kaminuriak herds. As will appear, those esti mates are highly approximate and, in my view, of marginal relevance. To the extent they are ma terial to the issues, I accept them; there are no others.
The term "harassment" used by the expert wit nesses means an outside stimulus producing a reaction in an animal. It is to be qualified by the intensity of the animal's response which may range
from no apparent interest to panic. A mild reac tion may not be discernible by external observation but can be measured by electrocardiogram. His work in this area led Dr. Geist to disagree with the conclusions drawn by Mr. Miller, on the basis of observation, that caribou did not react to certain things. However, I find no suggestion in Dr. Geist's evidence that such unobservable reactions would have an effect on a caribou that would, in any significant way, influence its behaviour so as to render it more difficult to hunt unless the harassment generating those reactions were applied repeatedly and systematically. What might be achieved in that way by deliberate experimenta tion would be a highly improbable and coinciden tal result of the harassments associated with mining exploration activity that may well give rise to unobservable reactions. Even if one accepts the highly unlikely proposition that a few dozen, even several score, migrating caribou might be so con tinuously subjected to a harassment by exploration activity as to be conditioned by it, it confounds reason that a sufficient number could be condi tioned so as to affect the collective behaviour of herds numbering in the tens of thousands. The Beverly and Kaminuriak herds are estimated to number 125,000 and 44,000 respectively, with a 35% margin of error either way.
The harassments that may arise out of mining activity beyond the exploration stage might well be sufficiently sustained to result in behavioural changes detrimental to the hunt but the evidence simply does not permit a meaningful finding on that point. I say "meaningful" because, while I conclude that the hunt would likely be impaired in the vicinity of a permanent mining installation, I have no basis to determine how extensive that vicinity might be. The evidence as to their observ able reactions to base camp activity permits me to infer that there would be no change in general migration routes unless the installation directly and subtantially interfered with access to a major water crossing.
The Kaminuriak and Beverly herds each come into contact with mining exploration activity during its calving and post-calving periods, which occur during June and July. The Inuit witnesses report instances of caribou in both areas being frightened off by low flying aircraft as they were attempting to get a shot at them. A number of camp sites and a good deal of exploration activity have encroached upon major water crossings.
Ongoing activities, however noisy, do not result in anything like panic. Herds pass within a few hundred feet of round-the-clock diamond drilling for days on end. Similarly, they pass close to occupied camps and through deserted camps. They do not avoid stationary objects. Subject to a par ticular sensitivity of the females in the calving and post-calving periods and male aggressiveness in rutting season, when approached directly they may merely walk away maintaining a distance of from 20 or 30 feet to several hundred yards. On the other hand, they show alarm when approached obliquely and stealthily. High flying aircraft pro duce no observable reaction. It seems they are alarmed by abrupt occurrences and by actions they associate with the behaviour of their predators.
Low flying aircraft are a different matter. I am entirely satisfied that the intermittent passage of low flying aircraft, fixed wing or helicopter, over caribou, such as occurs on take-off and landing and in the process of geophysical surveys, consti tute a serious harassment of the caribou. While I think it unlikely that any number of individual caribou are subjected to repeated harassment lead ing to the conditioning projected by Dr. Geist, nevertheless, reaction to the harassment does range through a variety of degrees up to panic and flight and probably does result in the death and injury of individual caribou. Death may ensue if the animal is already in a weakened condition, if it injures itself in flight, if it miscarries or if cow and calf are separated. It is also possible to run such an animal to death. There is no evidence that numer ous deaths have occurred but clearly, some are
distinctly possible, if not probable, in certain situa tions, particularly during the calving and post- calving periods and at places where the herds are concentrated. It is also clear that should harass ment occur in the course of a hunt, the hunter would likely be frustrated. On the other hand, the suggestion of a cumulative, long-term detrimental effect on the caribou herds, by activities to date, is not supported by the evidence.
The use of fluttering ribbons is a classic method of deflecting animals from their chosen paths. No doubt the beribboned stakes have deflected count less caribou, on countless occasions, from their individual paths. There is no basis in the evidence for concluding that those deflections, however numerous, have involved more than a few hundred feet here and there nor that they have involved the deflection of large numbers of caribou.
It is central to the plaintiffs' claim for injunctive relief against the defendant mining companies that the activities of those companies have contributed to the increased difficulty they have encountered in the caribou hunt in recent years. Consistent with that position, they necessarily dispute the position of the government defendants that the population of the Kaminuriak herd is in serious decline. They say that the herd has been driven away from the Baker Lake Area by the explora tion activities and that it may not be in decline at all. The Inuit are, beyond doubt, the most knowl edgeable experts available on the subject of hunt ing caribou. The plaintiffs' knowledge of the Kaminuriak herd is, however, pretty well restricted to the Baker Lake Area whereas provincial, terri torial and federal wildlife services have observed the herd over its entire range for a good many years. That range, which in the 1950's extended from Ontario south of James Bay into Saskatche- wan, taking in the northern half of Manitoba, today encroaches only slightly into northern Manitoba and is otherwise entirely within the Dis trict of Keewatin. The decline is a fact. It is so rapid that, at its present rate, the Kaminuriak herd will be extinct within 15 years.
The causes of that decline were the subject of considerable recrimination between the Inuit hunt ers and the government wildlife experts who testi fied. It is beyond the scope of this action to determine what the causes are, as long as, on a balance of probabilities, on the evidence before me, it has not been mineral exploration activities. While the overall caribou population of the Baker Lake Area appears to have declined and the ability of the Baker Lake hunters to satisfy their needs from that population has undoubtedly been impaired, the balance of probabilities, on the evi dence, is that activities associated with mineral exploration are not a significant factor in the population decline. Clearly, there have been a number of instances where low flying aircraft employed in those activities have interfered with particular hunters.
OBSERVATIONS AND RULINGS ON EVIDENCE
Rule 482, in its material parts, provides:
Rule 482. (1) No evidence in chief of an expert witness shall be received at the trial (unless the Court otherwise orders in a particular case) in respect of any issue unless
(a) that issue has been defined by the pleadings or by agreement of the parties filed under Rule 485;
(b) a full statement of the proposed evidence in chief of the witness has been set out in an affidavit, the original of which has been filed and a copy of which has been served on the other party or parties not less than 10 days before the commencement of trial; and
(c) the expert witness is available at the trial for cross-examination.
(2) Subject to compliance with paragraph (1), evidence in chief of an expert witness may be tendered at the trial by
(a) the reading of the whole of the affidavit referred to in paragraph (1), or such part thereof as the party decides to use at the trial, into evidence by the witness (unless the Court, with the consent of all parties, permits it to be taken as read); and
(b) if the party so elects, verbal testimony by the witness
(i) explaining or demonstrating what is in the affidavit or the part thereof that has been so put into evidence, as the case may be, and
(ii) otherwise, by special leave of the Court subject to such terms if any as seem just.
(5) Paragraph (1) does not apply in respect of rebutting evidence including, without limiting the generality thereof, the evidence of a witness who is called exclusively for the purpose of rebutting evidence given by an opposing side and rebutting evidence given by a witness who is called to give such evidence as well as evidence under paragraph (2).
Mr. Miller's evidence in chief, as to the causes of population decline of the Kaminuriak herd was the subject of an affidavit filed under Rule 482(1)(b). Dr. Kalef's evidence, directed to the same point, was not subject of such an affidavit and was objected to. I hold that expert evidence may be adduced, under the exception provided by Rule 482(5), to rebut any evidence given by an opposing party, not just expert evidence given by it.
Dr. Milton J. Freeman is a professor of anthropology at McMaster University, Hamilton, Ontario. He is a social anthropologist, which is to say that he is neither an archaeologist nor a lin guist; he studies the social behaviour of people in the context of their society or culture. He has worked extensively with the Inuit. I did not find it necessary to review his evidence of Inuit use and occupancy of the land in the Baker Lake Area. His conclusions were reached after extensive interviews with Inuit and on the basis of archaeological evi dence. The Court has archaeological evidence directly before it and has heard the testimony of a number of Inuit. My conclusions and his, on the subject of Inuit land use and occupancy, do not differ significantly, if at all.
In evidence in chief, purporting to explain or demonstrate what was in his expert affidavit, Dr. Freeman started to describe the Inuit society which he had concluded existed on the barrens prior to their settlement. It is an area within his competence as an expert. He said it was a "band level society" and he began to describe what he meant by that term. Objection was taken on the ground that nothing in his affidavit related to that evidence. The objection seemed to me to be well taken and I so indicated but let the examination continue on the understanding that what would emerge would be an explanation or demonstration of opinions expressed in paragraphs 7 and/or 9 of
the affidavit as to the relationship of the Inuit with their environment. In paragraphs 7 and 9, Dr. Freeman had deposed:*
7. Since 1959 I have been actively engaged in study and research regarding Inuit land use. In the course of conducting this research I have acquired an understanding of the Inuit culture and how the Inuit relate to their environment.
9. Over the years that the Inuit have lived on the land they have evolved a very deep dependence upon the resources of the land. They developed a very comprehensive relationship with their environment as a necessary precondition to physiological and cultural survival. As far as the people in the Baker Lake area are concerned, their dependence on caribou is so great that I would assume that they have much greater knowledge than we have been able to elicit from them.
Dr. Freeman had not used the term "band level society" in his affidavit. In explaining it, he said such a society has no chieftains or states or nations and went on: *
Band level societies, generally, are societies which have quite a low population density. The people are nomadic and they tend to exploit a variety of resources in their areas, and tend to be generalists in terms of economic orientation, unless that's clear ly impossible because of the restrictions on resources.
They tend to be societies which have particular types of economic organization, social organization, and certain types of leadership, certain types of marriage patterns, so on. We sometimes regard them as being very flexible. One of the reasons for this is that they have problems often of dealing with environments which perhaps from our agricultural basis would be seen to be somewhat marginal. It is not at all necessarily true that they are marginal to the people concerned, but these tend to be areas that geographers would call marginal lands. They don't usually support agriculture.
The people in question then have a particular type of organi zation and culture and values which best suit them for living in that type of an environment and exploiting resources which often themselves are nomadic. This is one of the bases in these societies. I think the important thing is that we look for patterns. We are not just concerned to attach ourselves to say, as an anthropologist, one small camp, which might be five, six people, and from that obtain all that information about society which might encompass anything up to three, four hundred people. It may be even more. So, consequently we see the units as being units of a much larger coherent organized society and very much interacting, interdependent, mutually dependent on interaction with other units within the society.
* Transcript, Vol. X, p. 1424.
* Transcript, Vol. X, pp. 1454 ff.
We can certainly recognize what we called bands, even though units of the bands might be small camps of twenty, thirty people. But, the band is an aggregation of these camps which forms a definite sense of community. This is one of the defining characteristics of a band. The people there, for a number of reasons—common language, dialect, having a common ideology or value system, having commonality in terms of the land they use and a degree of interaction which would be more frequent with people within their bands than people outside of their bands—this all constitutes a very coher ent society which anthropologists have no problem in identify ing any more than the people have a problem knowing where the boundaries are.
At this point the objection was taken. What ensued was not as promised. It was instead a persuasive explanation of the bases for Dr. Free- man's conclusion that Inuit society was a band level society composed of units, the bands, larger than its constituent small camps. Those encamp ments of two or three families were the units described by the Inuit witnesses, encountered by Inspector Dent in the mid-1950's, by Norton in 1762, and discovered to have existed in the Thule period. In my view, nothing in the affidavit filed pursuant to Rule 482 would reasonably have led an opposing party to anticipate that evidence as to a band level society would be adduced in explana tion or demonstration of the affidavit. None of the defendants' counsel cross-examined Dr. Freeman on that aspect of his evidence in chief. In support of the objection they argued that they had had no opportunity to prepare to cross-examine him on it. They were right.
Delivering a unanimous decision of the Federal Court of Appeal, the then Chief Justice recently said: 12
I wish to add that a perusal of some of the affidavits of experts filed in this case leads me to believe that Rule 482 is being followed by some counsel, if at all, in the letter rather than the spirit. Indeed, in my view, the result is much less satisfactory than in the old days of voluntary exchange of valuation reports. I strongly suggest that, when an expert's affidavit does not contain a sufficiently detailed statement of the expert's reasoning so that the Court could, in the absence of attack, adopt that reasoning as its own and decide the question that is the subject of his evidence on the basis of it, the party should not be allowed to supplement it by verbal testimony until a supplementary affidavit is filed containing such reason ing and the other side and the Court have had an opportunity to consider it. (If that involves adjournments, costs thrown away should be assessed against the party at fault.)
12 Karam v. N.C.C. [1978] 1 F.C. 403 at pp. 406 ff.
I had had occasion the previous day, when that passage from the Karam case was cited to me, to indicate my intention to follow that course of action if the plaintiffs' counsel persisted in efforts to adduce similarly undisclosed evidence in chief through Dr. Harp. * I must assume that the defendants' counsel had that ruling in mind when the objection was again taken with respect to Dr. Freeman's evidence in chief. Perhaps that evidence did not turn out to be as crucial as they had anticipated it might be but, whatever the reason, no adjournment was requested to permit prepara tion of cross-examination and/or rebuttal evi dence. If it had, it would have been granted and, since it was not, I can only conclude that the objection was waived.
Dr. Peter Usher is a "Socio-Economic Consult ant". His academic qualification at the post graduate level is geography. He received his doc torate in 1970. Geography, according to The Shorter Oxford English Dictionary, is:
The science that describes the earth's surface, its form and physical features, its natural and political divisions, its climates, productions, etc.
His work experience relative to the North and its inhabitants includes part time jobs and research in the summers of 1962 to 1967, inclusive. His first full time job was as a researcher for the defendant Minister between October 1967 and January 1973. He was retained as a consultant at Inuvik, N.W.T., by the plaintiff, Inuit Tapirisat of Canada, from February 1973 to August 1974, and by the Committee for Original Peoples Entitle ment from September 1974 to November 1976. Dr. Usher's evidence had more the ring of a convinced advocate than a dispassionate profes sional. There was a lot of prognosis.
Objections were taken to the admissibility of a good deal of Dr. Usher's evidence in chief and rulings were reserved. I have come to the conclu sion that most of them were well taken. Neither his formal training as a geographer nor his experi ence in and with the Arctic and Inuit qualify him to form opinions on political, sociological, behavi-
* Transcript, Vol. IX, pp. 980-990.
oural, psychological and nutritional matters ad missible as expert evidence in a court of law. I do accept his competence as a geographer and to reach economic conclusions based on that compe tence.
Paragraphs 1, 2 and 18 of his affidavit are pro forma, containing no material conclusions. Para graph 17 is pure argument and not evidence at all. Paragraphs 4, 5, 10, 11, 13, 14, 15 and 16 are not admissible. Paragraphs 6, 7, 8, 9 and 12 do set forth conclusions within Dr. Usher's competence as an expert. I did not find it necessary to make particular reference to those conclusions since they were essentially corroborative of the evidence of the Inuit witnesses and Dr. Freeman on the subject of the Inuit's exploitation of the barren lands and their resources.
William Noah, mayor of Baker Lake, prepared a list of the plaintiffs' places of origin which was tendered as an exhibit. Except as the information pertained to himself, close relatives and others originating in the Back River country, it was large ly hearsay. It was objected to as such. Some of the other Inuit who testified confirmed the informa tion in so far as their families were concerned. Manifestly it would have been outrageously costly to maintain the Court in Baker Lake long enough to hear all the Inuit necessary to confirm the list fully or to bring them south from Baker Lake for the same purpose. I am satisfied that an adequate sample of its contents was verified by admissible evidence. While they are not all the resident Inuit, the plaintiffs are sufficiently numerous and their progeny, I am sure, even more so, to give the list some considerable validity as indicating the places of origin of the entire local Inuit population.
Exhibits marked for identification as "B" to "H" were tendered by the plaintiffs as counsel was in the process of closing their case in chief. Exhibit "B" is a three volume reprint of a 1912 publication by the King's Printer for Canada entitled "Indian Treaties and Surrenders". It contains 483 treaties with Indians dated from May 12, 1781 to March
7, 1902. Exhibit "C" is a bundle of six Queen's Printer's reprints of treaties not included in Exhib it "B". Exhibits "B" and "C" are said to comprise copies of all the treaties ever concluded between the aboriginal inhabitants of Canada and its sover eign. Exhibits "D", "E" and "F" are photocopies of pages from three volumes of a publication by the Dominion Archivist entitled "Documents relating to The Constitutional History of Cana- da". Exhibit "G" is an official publication of the Government of Quebec entitled "The James Bay and Northern Québec Agreement". No objection was taken to these documents on the basis of their being copies; however, the defendants objected to their production except to the extent that they represented documents of which the Court deter mined it could take judicial notice.
Exhibit "H", a photocopy of the James Bay and Northern Quebec Native Claims Settlement Act" ought not to have been marked. The Court is required, by section 18 of the Canada Evidence Act 14 to take judicial notice of it. I am of the view that I can take judicial notice of all of the others.
Many of the treaties comprised in Exhibits "B" and "C" deal with lands that once were part of Rupert's Land. Treaties No. 124 in Exhibit "B" and 8 and 11 in "C" are of particular interest. The former adopted, in 1871, the Selkirk Treaty of 1817 which, so far as I am aware, is the only treaty whereby aborigines ceded land in Rupert's Land for settlement while it was under the administration of the Hudson's Bay Company; Nos. 8 and 11 are the treaties dealing with lands that are today within the Northwest Territories. The evidence supports the proposition that the policies of the Hudson's Bay Company and the Canadian government have been consistently to conclude agreements with the aborigines before dealing with the land in a manner necessarily inconsistent with their aboriginal title. The docu ments comprised in Exhibits "D", "E" and "F" articulate that policy in so far as successive pre-
" S.C. 1976-77, c. 32. 14 R.S.C. 1970, c. E-10.
Confederation governments were concerned and the federal position reflected in the James Bay Agreement establishes that this was, at least until very recently, still Canadian government policy. The Court is, of course, able to give effect to policy only to the extent that it is reflected in law.
The evidence as to some disputed questions of fact is extremely meagre, so meagre that, in other circumstances, I should feel that the burden of proof had not been discharged. The meagreness of the evidence is, however, inherent in its subject matter. The barren lands are vast and their inhabi tants few and, until the present generation, widely scattered and constantly on the move. Their histo ry, beyond living memory, is unrecorded except by the handful of whites who, largely by accident, encountered them. Their resources did not interest early traders; their nomadic ways and tiny camps did not arouse the enthusiasm of missionaries. Snow houses leave no ruins and, until the proto- historic period, most of their tools and weapons were made of local materials which, like them selves, their dogs and tents, were organic and, hence, biodegradable. Even today the mineral exploration is carried on over large areas where, except near major water crossings close to the community, even the Inuit hunters are quite un likely to come across them. Two or three witnessed incidents may well reflect a reality of countless unwitnessed incidents.
THE SOURCE OF INUIT ABORIGINAL TITLE
While The Royal Proclamation of 1763, various statutes and almost all the decided cases refer to Indians and do not mention Inuit or Eskimos, the term "Indians", in Canadian constitutional law, includes the Inuit. 15 In the absence of their exclu sion from that term, either expressly or by com pelling inference, decisions relevant to the aborigi nal rights of Indians in Canada apply to the Inuit.
1 5 Reference as to whether the term `Indians" in section 91(24) of the B.N.A. Act, 1867, includes Eskimo inhabitants of Quebec [1939] S.C.R. 104.
In light of the Sigeareak decision, ' 6 The Royal Proclamation must be dismissed as a source of aboriginal title in Rupert's Land. However, the Proclamation is not the only source of aboriginal title in Canada.
In Calder v. Attorney-General of British Columbia," the six members of the Supreme Court who found it necessary to consider the sub stantive issues, which dealt with territory outside the geographic limits of the Proclamation, all held that an aboriginal title recognized at common law had existed. Judson J., with Martland and Ritchie JJ. concurring, put it, at page 328, as follows:
Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefa thers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a "personal or usufructuary right". What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was "dependent on the goodwill of the Sovereign".
The emphasis is mine. In the result, he held that "Indian title" to have been extinguished. The dis senting judgment, which held the aboriginal title, with certain exceptions, not to have been extin guished, was delivered by Hall J., with Spence and Laskin JJ. concurring. Pigeon J. disposed of the matter exclusively on the procedural ground that the plaintiffs had not obtained the required fiat to sue the Crown in right of British Columbia, a conclusion concurred in by Judson, Martland and Ritchie JJ. While it appears that the judgment of Pigeon J. embodies the ratio decidendi of the Supreme Court, the clear agreement of the other six judges on the point is solid authority for the general proposition that the law of Canada recog nizes the existence of an aboriginal title independ ent of The Royal Proclamation or any other pre rogative act or legislation. It arises at common law. Its recognition by the Supreme Court of Canada may well be based upon an acceptance of the reasoning of Chief Justice Marshall in
16 [1966] S.C.R. 645. '' [1973] S.C.R. 313.
Worcester v. The State of Georgia,' 8 a decision referred to in both their judgments by Judson and Hall JJ.
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. It is difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered which annulled the pre-existing rights of its ancient possessors.
The emphasis was included in the passage when it was quoted by Mr. Justice Hall at page 383.
The decision of the Supreme Court of the Northern Territory of Australia in Milirrpum v. Nabalco Pty. Ltd. 19 is most useful in its exhaustive compilation and analysis of pertinent authorities from numerous common law jurisdictions. It is, however, clear in that portion of the judgment dealing with Australian authorities, pages 242 to 252, that Blackburn J. found himself bound to conclude that the doctrine of communal native title had never, from Australia's inception, formed part of its law. If I am correct in my appreciation of the authority of the Calder decision, that is not the law of Canada. The Calder decision renders untenable, in so far as Canada is concerned, the defendants' arguments that no aboriginal title exists in a settled, as distinguished from a con quered or ceded, colony and that there is no aboriginal title unless it has been recognized by statute or prerogative act of the Crown or by treaty having statutory effect.
PROOF OF ABORIGINAL TITLE
The elements which the plaintiffs must prove to establish an aboriginal title cognizable at common law are:
1. That they and their ancestors were members of an organized society.
18 (1832) 6 Peters 515 at pp. 542 ff.
19 (1970) 17 F.L.R. 141.
2. That the organized society occupied the specific territory over which they assert the aboriginal title.
3. That the occupation was to the exclusion of other organized societies.
4. That the occupation was an established fact at the time sovereignty was asserted by England.
Decisions supporting these propositions include those of the Supreme Court of Canada in Kruger v. The Queen 20 and the Calder case and those of the United States Supreme Court in Johnson v. M'Intosh, 21 Worcester v. The State of Georgia (supra) and United States of America v. Santa Fe Pacific Railroad Company. 22
Proof that the plaintiffs and their ancestors were members of an organized society is required by the authorities. In quoting Mr. Justice Judson's Calder judgment, I emphasized the phrase "organ- ized in societies" and I repeated the emphasis Mr. Justice Hall had included in quoting the passage from Worcester v. The State of Georgia: "having institutions of their own, and governing themselves by their own laws". The rationale of the require ment is to be found in the following dicta of the Privy Council in In re Southern Rhodesia: 23
The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. In the present case it would make each and every person by a fictional inheritance a landed proprietor "richer than all his tribe." On the other hand, there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English law. Between the two there is a wide tract of much ethnological interest, but the position of the natives of Southern Rhodesia within it is very uncertain; clearly they approximate rather to the lower than to the higher limit.
Their Lordships did not find it necessary to pursue the question further since they found that the aboriginal rights, if any, that might once have
20 [1978] I S.C.R. 104.
21 (1823) 8 Wheaton 543.
22 (1941) 314 U.S. 339.
23 [1919] A.C. 211 at pp. 233 ff.
existed had been expressly extinguished by the Crown.
It is apparent that the relative sophistication of the organization of any society will be a function of the needs of its members, the demands they make of it. While the existence of an organized society is a prerequisite to the existence of an aboriginal title, there appears no valid reason to demand proof of the existence of a society more elaborately structured than is necessary to demon strate that there existed among the aborigines a recognition of the claimed rights, sufficiently defined to permit their recognition by the common law upon its advent in the territory. The thrust of all the authorities is not that the common law necessarily deprives aborigines of their enjoyment of the land in any particular but, rather, that it can give effect only to those incidents of that enjoy ment that were, themselves, given effect by the regime that prevailed before. 24
The fact is that the aboriginal Inuit had an organized society. It was not a society with very elaborate institutions but it was a society organ ized to exploit the resources available on the bar rens and essential to sustain human life there. That was about all they could do: hunt and fish and survive. The aboriginal title asserted here encompasses only the right to hunt and fish as their ancestors did.
The organized society of the Caribou Eskimos, such as it was, and it was sufficient to serve them, did not change significantly from well before Eng- land's assertion of sovereignty over the barren lands until their settlement. For the most part, the ancestors of the individual plaintiffs were members of that society; many of them were themselves members of it. That their society has materially changed in recent years is of no relevance.
The specificity of the territory over which aboriginal title has heretofore been claimed in the reported cases appears not to have been a disputed issue of fact. In the Calder case, the subject terri tory was agreed between the parties. In the Kruger
24 Amodu Tijani v. The Secretary, Southern Nigeria [1921] 2 A.C. 399.
case, the Court did not find it necessary to deal with the questions of aboriginal title and extin- guishment and disposed of the appeal on other grounds to which I will return. It did, however, give a clear signal as to what its approach would be in the future. Mr. Justice Dickson, for the Court, at pages 108 ff., said:
Claims to aboriginal title are woven with history, legend, politics and moral obligations. If the claim of any Band in respect of any particular land is to be decided as a justiciable issue and not a political issue, it should be so considered on the facts pertinent to that Band and to that land, and not on any global basis....
There were obviously great differences between the aboriginal societies of the Indians and the Inuit and decisions expressed in the context of Indian societies must be applied to the Inuit with those differences in mind. The absence of political struc tures like tribes was an inevitable consequence of the modus vivendi dictated by the Inuit's physical environment. Similarly the Inuit appear to have occupied the barren lands without competition except in the vicinity of the tree line. That, too, was a function of their physical environment. The pressures of other peoples, except from the fringes of the boreal forest, were non-existent and, thus, the Inuit were not confined in their occupation of the barrens in the same way Indian tribes may have confined each other elsewhere on the conti nent. Furthermore, the exigencies of survival dic tated the sparse, but wide ranging, nature of their occupation.
In Mitchel v. The United States, 25 Mr. Justice Baldwin, delivering the opinion of the Court, said:
Indian possession or occupation was considered with refer ence to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its exclusive enjoyment in their own way and for their own purposes were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals....
The merits of this case do not make it necessary to inquire whether the Indians within the United States had any other rights of soil or jurisdiction; it is enough to consider it as a settled principle, that their right of occupancy is considered as sacred as the fee simple of the whites.
The value of early American decisions to a determination of the common law of Canada as it
25 (1835) 9 Peters 711 at p. 746.
pertains to aboriginal rights is so well established in Canadian courts, at all levels, as not now to require rationalization. With respect, the Ameri- can decisions seem considerably more apposite than those Privy Council authorities which deal with aboriginal societies in Africa and Asia at the upper end of the scale suggested in In re Southern Rhodesia. American decisions as to the existence of aboriginal title, rendered since creation of the Indian Claims Commission, 26 must be approached with considerable caution. The Commission, whose decisions are the subject of most recent American jurisprudence, is authorized, inter alia, to deter mine "claims based upon fair and honorable deal ings that are not recognized by any rule of law or equity", a jurisdiction well beyond any Parliament has yet delegated to any Canadian tribunal.
The nature, extent or degree of the aborigines' physical presence on the land they occupied, required by the law as an essential element of their aboriginal title is to be determined in each case by a subjective test. To the extent human beings were capable of surviving on the barren lands, the Inuit were there; to the extent the barrens lent them selves to human occupation, the Inuit occupied them.
The occupation of the territory must have been to the exclusion of other organized societies. In the Santa Fe case, at page 345, Mr. Justice Douglas, giving the opinion of the Court, held:
Occupancy necessary to establish aboriginal possession is a question of fact to be determined as any other question of fact. If it were established as a fact that the lands in question were, or were included in, the ancestral home of the Walapais in the sense that they constituted definable territory occupied exclu sively by the Walapais (as distinguished from lands wandered over by many tribes), then the Walapais had "Indian title" which unless extinguished survived the railroad grant of 1866.
In the early historic period, it was the Chipe- wyan, not the Inuit, who wandered over the south westerly portion of the Baker Lake Area. During the prehistoric period Indians occupied the Dubaunt valley and both Indians and Inuit
26 Public Law 79-959, August 13, 1946.
occupied portions of the Thelon valley. The histor ic fact of their hostility supports the inference that their occupations of the same sites were successive rather than simultaneous. The evidence suggests that, in prehistoric times, the southwest portion of the Area was a transitional zone with primarily Indian occupation toward the boreal forest and primarily Inuit occupation toward Baker Lake. The only reason for either being there was the seasonal availability of caribou, so I cannot see that small camps of Inuit were likely, deliberately, to have wandered into land seasonally exploited by relatively large bands of Indians.
This is the only area where the weight of the evidence does not confirm the admission by the government defendants that the Inuit had occupied and used the Baker Lake Area since time immemorial. The law is clear that where the evi dence and an admission by counsel cannot stand together, it is the duty of the Court to have regard to the real facts as established in evidence. 27 I take it that, in this context, "time immemorial" runs back from the date of assertion of English sover eignty over the territory which was probably no earlier than 1610 and certainly no later than May 2, 1670.
On the evidence, I cannot find that the entire Baker Lake Area was exclusively occupied by the Inuit on the advent of English sovereignty. The archaeological and historical evidence leads to the conclusion that probably, at that date, the bound ary between Inuit and Indian land traversed the southwesterly portion of the Baker Lake Area. I have concluded, admittedly on the basis of very meagre evidence and recognizing a large element of arbitrariness as necessary to a definition of the boundary of exclusive Inuit occupation, that the territory to the south and west of a line drawn from the east end of Aberdeen Lake to the conflu ence of the Kazan and Kunyak Rivers was not Inuit territory.
At this point, it must be recalled that the lands over which the plaintiffs assert their aboriginal
27 Sinclair v. Blue Top Brewing Co. Ltd. [1947] 4 D.L.R. 561 (S.C.C.).
title are not just the Baker Lake Area but an undefined area that includes it. The Baker Lake Area is where they say they are presently suffering a violation of their rights under their aboriginal title and in respect of which they seek injunctive and other relief but, again, their assertion of aboriginal title is not confined to the Baker Lake Area. The evidence as to Inuit occupation does not extend beyond the R.C.M.P. detachment area; it does, however, lead to the conclusion that Inuit occupation of the detachment area did not change materially between prehistoric times and their settlement.
In the result, I find, on a balance of probabilities on the evidence before me, that, at the time Eng- land asserted sovereignty over the barren lands west of Hudson Bay, the Inuit were the exclusive occupants of the portion of barren lands extending from the vicinity of Baker Lake north and east toward the Arctic and Hudson Bay to the bound aries of the Baker Lake R.C.M.P. detachment area as they were in 1954 including, specifically, that portion of the detachment area lying north and east of a line drawn from its boundary down stream along the Thelon River to its outlet from Aberdeen Lake, thence southeasterly to the inlet of the Kazan River into Thirty Mile Lake and thence upstream along the Kazan to the boundary of the area. An aboriginal title to that territory, carrying with it the right freely to move about and hunt and fish over it, vested at common law in the Inuit.
EXTINGUISHMENT BEFORE 1870
The defendants say that the Inuit's aboriginal title in Rupert's Land was extinguished by the Royal Charter of May 2, 1670, granting Rupert's Land to the Hudson's Bay Company or, if not by that, by the admission of Rupert's Land to Canada in 1870. The limits of Rupert's Land are not in issue here nor does anything turn on the formal name of the grantee which will simply be referred to as "the Company".
The Royal Charter granted the Company "the sole Trade and Commerce of ' Rupert's Land. It constituted Rupert's Land "one of our Plantacions or Colonyes in America" and went on:
AND FURTHER WEE DOE by these presentee for us our heires and successors make create and constitute the said Governor and Company for the tyme being and theire successors the true and absolute Lordes and Proprietors of the same Territory lymittes and places aforesaid And of all other the premisses SAVING ALWAYES the faith Allegiance and Soveraigne Domin ion due to us our heires and successors for the same To HAVE HOLD possesse and enjoy the said Territory lymittes and places and all and singuler other the premisses hereby granted as aforesaid with theire and every of their Rightes Members Jurisdiccions Prerogatives Royaltyes and Appurtenances what soever to them the said Governor and Company and theire Successors for ever TO BEE HOLDEN of us our heires and successors as of our Mannor of East Greenwich in our County of Kent in free and common Soccage and not in Capite or by Knightes Service YEILDING AND PAYING yearely to us our heires and Successors for the same two Elkcs and two Black beavers whensoever and as often as Wee our heires and succes sors shall happen to enter into the said Countryes Territoryes and Regions hereby granted ...
The Company's legislative authority in the colony was limited to the making of reasonable laws, not repugnant to the laws of England, with their application explicitly restricted to the Com pany itself, its officers and servants. The Compa- ny's judicial jurisdiction was limited to the application of English civil and criminal law to persons "belonging to" or "that shall live under" the Company. That the draftsman of the Charter did not contemplate Rupert's Land as totally devoid of aboriginal inhabitants is evident. The Company was empowered to make "peace or Warre with any Prince or People whatsoever that are not Christians" in Rupert's Land "and alsoe to right and recompense themselves upon the Goodes Estates or people of those partes".
The presence in Rupert's Land of aboriginal inhabitants with aboriginal property rights was contemplated. The Charter did not purport to supersede with English law, the laws by which the aborigines governed themselves, nor did it author ize the Company to legislate in respect of aborig ines nor to adjudicate in respect of them or their laws. The extinguishment of aboriginal title by the Charter depends entirely upon the grant of title recited above.
This Charter was by no means the only nor the first Royal Charter that established a proprietary colony in North America and granted title to the lands comprised in the colony to its proprietors. In fact, it was the last. The proprietors of those other
colonies, before as well as after May 2, 1670, generally, if not invariably, effected the extin- guishment of aboriginal rights by cession or sword. They did not rely on the incidents of a title pecu liar to English law as displacing whatever rights the aborigines enjoyed under their own laws.*
It seems to me that the grant of title to the Company was intended solely to define its owner ship of the land in relation to the Crown, not to extinguish the aboriginal title. That conclusion is consistent with what had already happened in other North American colonies where, unlike Rup- ert's Land, settlement had made necessary the extinguishment of aboriginal title. It is consistent with the policy of the Company itself, expressed as early as 1683, with respect to lands required for trading posts. It is consistent with what the Com pany in fact did, through its surrogate Lord Sel- kirk, the only time it was required to make provi sion for a settlement. It is consistent with what the Canadian government has done since the admis sion of Rupert's Land to Canada.
The coexistence of an aboriginal title with the estate of the ordinary private land holder is readily recognized as an absurdity. The communal right of aborigines to occupy it cannot be reconciled with the right of a private owner to peaceful enjoyment of his land. However, its coexistence with the radical title of the Crown to land is characteristic of aboriginal title and the Company, in its owner ship of Rupert's Land, aside from its trading posts, was very much in the position of the Crown. Its occupation of the territory in issue was, at most, notional.
I therefore find that the Royal Charter of May 2, 1670, did not extinguish aboriginal title in Rup- ert's Land. Nothing in the 1690 Act of Parliament
* A very useful analysis of available historical material rele vant to the conclusions reached in this and the next paragraph is to be found in Chapter 6 of The Land Rights of Indigenous Canadian Peoples, a thesis submitted for the degree of Doctor of Philosophy in the University of Oxford, Trinity term, 1979, by Brian Slattery, presently of the Faculty of Law, University of Saskatchewan, Saskatoon.
that confirmed the Charter had any bearing on this question. 28 Likewise, I find nothing in the Imperial Order in Counci1 29 of June 23, 1870, whereby Rupert's Land was admitted to Canada that had any effect on aboriginal title.
In the latter respect, the plaintiffs urged that paragraph 14 of the Order in Council is a term which must be fulfilled before the Parliament of Canada will have the legislative jurisdiction to extinguish aboriginal title in Rupert's Land.
14. Any claims of Indians to compensation for lands required for purposes of settlement shall be disposed of by the Canadian Government in communication with the Imperial Government; and the Company shall be relieved of all responsibility in respect of them.
I disagree. The provision neither created nor extin guished rights or obligations vis-à-vis the aborig ines, nor did it, through section 146 of The British North America Act, 1867, 3 ° limit the legislative competence of Parliament. It merely transferred existing obligations from the Company to Canada.
The aboriginal title, vested at common law in the Inuit, had not been extinguished prior to the admission of Rupert's Land to Canada. That title was not extinguished by or in the process of admis sion. It subsisted when Rupert's Land became part of Canada.
EXTINGUISHMENT SINCE 1870
The Inuit's aboriginal title` has not been extin guished by surrender. Since the admission of Rup- ert's Land to Canada, it has been within the legislative competence of the Parliament of Canada to extinguish it. Parliament has not enact ed legislation expressly extinguishing that title.
The plaintiffs argue that any such extinguish- ment must be effected expressly. They find support for that proposition in the judgment of Mr. Justice Hall in the Calder case. The defendants argue that extinguishment may be the necessary result of legislation even though the intention is not expressed. They find support for their position in
28 2 W . & M., c. 23.
z9 R.S.C. 1970, Appendix It, No. 9.
3° R.S.C. 1970, Appendix II, No. 5.
the judgment of Mr. Justice Judson in the Calder case.
At page 402, Mr. Justice Hall, referring to the "Indian title" in issue, said:
It being a legal right, it could not thereafter be extinguished except by surrender to the Crown or by competent legislative authority, and then only by specific legislation.
The emphasis is mine. After citing a number of authorities, he concluded his discussion of the particular point, at page 404, as follows:
It would, accordingly, appear to be beyond question that the onus of proving that the Sovereign intended to extinguish the Indian title lies on the respondent and that intention must be "clear and plain".
Again, the emphasis is mine. If I understand the plaintiffs well, they argue that, to extinguish aboriginal title, legislation must state expressly that such extinguishment is its object.
I have perused the authorities cited by Mr. Justice Hall and the one upon which he appears to have relied for the qualification embraced in the phrases I have emphasized is the following passage from the opinion of Davis J., for the United States Court of Claims, in The Lipan Apache Tribe v.
The United States 31 :
The correct inquiry is, not whether the Republic of Texas accorded or granted the Indians any rights, but whether that sovereign extinguished their pre-existing occupancy rights. Extinguishment can take several forms; it can be effected "by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise***." United States v. Santa Fe Pac. R.R., supra, 314 U.S. at 347. While the selection of a means is a governmental prerogative, the actual act (or acts) of extinguishment must be plain and unambiguous. In the absence of a "clear and plain indication" in the public records that the sovereign `intended to extinguish all of the Iclaimants'J rights" in their property, Indian title continues. Id. at 353.
The emphasis was added by Mr. Justice Hall.
It is apparent that the phrase "clear and plain intention" has its origin in the Santa Fe decision. The issue, which gave rise to the phrase, was whether a band's acceptance of a reservation in 1881 had effected an extinguishment, by voluntary cession, of their aboriginal title to lands which were subject to the Act of Congress of July 27, 1866, which had granted those lands to the rail way. The Act provided, in part, that:
31 (1967) 180 Ct. Cl. 487 at p. 492.
2. The United States shall extinguish, as rapidly as may be consistent with public policy and the welfare of the Indians, and only by their voluntary cession, the Indian title to all lands falling under the operation of this act and required in the donation to the road named in the act.
That is clearly the expression of avowed solicitude Mr. Justice Douglas had in mind when he said, at pages 353 and 354:
We search the public records in vain for any clear and plain indication that Congress in creating the Colorado River reser vation was doing more than making an offer to the Indians, including the Walapais, which it was hoped would be accepted as a compromise of a troublesome question. We find no indica tion that Congress by creating that reservation intended to extinguish all of the rights which the Walapais had in their ancestral home. That Congress could have effected such an extinguishment is not doubted. But an extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.
No Canadian legislation requiring that legisla tive extinguishment of aboriginal titles be effected in a particular way, has been brought to my attention. There are numerous Canadian authori ties which have held that the aboriginal right to hunt, even when confirmed by treaty, is subject to regulation by competent legislation. The decision in Sikyea v. The Queen, 32 delivered by Mr. Justice Hall for the Court, is an example. The right freely to hunt as one's ancestors did, over particular land, has been an important incident of most, if not all, aboriginal titles yet asserted in Canada. It is the right proved here. It is, nonetheless, a right that has been abridged by legislation of general application making no express mention of any intention to deal with aboriginal title in any way.
I cannot accept the plaintiffs' argument that Parliament's intention to extinguish an aboriginal title must be set forth explicitly in the pertinent legislation. I do not agree that Mr. Justice Hall went that far. Once a statute has been validly enacted, it must be given effect. If its necessary effect is to abridge or entirely abrogate a common law right, then that is the effect that the courts must give it. That is as true of an aboriginal title as of any other common law right. Paragraph 1(a)
32 [1964] S.C.R. 642.
of the Canadian Bill of Rights 33 does not make the aboriginal title in issue here an exception to the
general rule.
The legislation in the Calder case consisted of thirteen separate items: nine proclamations by the Governor of the Colony of British Columbia and
four ordinances of its Legislative Council, none of which expressly provided that it was intended to
extinguish aboriginal title. Their pertinent provi sions are set out in the trial judgment. 34 After summarizing them, Mr. Justice Judson, at page 333, said:
The result of these proclamations and ordinances was stated by Gould J. at the trial in the following terms. I accept his statement, as did the Court of Appeal:
The various pieces of legislation referred to above are connected, and in many instances contain references inter se, especially XIII. They extend back well prior to November 19, 1866, the date by which, as a certainty, the delineated lands were all within the boundaries of the Colony of British Columbia, and thus embraced in the land legislation of the Colony, where the words were appropriate. All thirteen reveal a unity of intention to exercise, and the legislative exercising, of absolute sovereignty over all the lands of British Columbia, a sovereignty inconsistent with any con flicting interest, including one as to "aboriginal title, other wise known as the Indian title", to quote the statement of claim. The legislation prior to November 19, 1866, is includ ed to show the intention of the successor and connected legislation after that date, which latter legislation certainly included the delineated lands.
He concluded, at page 344:
In my opinion, in the present case, the sovereign authority elected to exercise complete dominion over the lands in ques tion, adverse to any right of occupancy which the Nishga Tribe might have had, when, by legislation, it opened up such lands for settlement, subject to the reserves of land set aside for Indian occupation.
To say that the necessary result of legislation is adverse to any right of aboriginal occupancy is tantamount to saying that the legislator has expressed a clear and plain intention to extinguish that right of occupancy. Justices Hall and Judson were, I think, in agreement on the law, if not its application in the particular circumstances.
"S.C. 1960, c. 44 [R.S.C. 1970, Appendix III]. 34 (1970) 8 D.L.R. (3d) 59 at pp. 75 ff.
I now turn to the legislation said to have effect ed the extinguishment of the aboriginal title in issue. All apply to the District of Keewatin. No real doubt as to the validity of any has been suggested, or suggests itself, to me.
The first Dominion Lands Act 35 provided:
42. None of the provisions of this Act respecting the settle ment 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.
That provision was carried forward, verbatim, in the Dominion Lands Act 1879 36 which was repealed by the Dominion Lands Act, 1883, 37 which, in turn, provided:
3. None of the provisions of this Act shall be held to apply to territory the Indian title to which shall not, at the time, have been extinguished.
That provision continued in effect until enactment of The Dominion Lands Act 38 of 1908.
The 1908 Act contained no provision exempting from its operation territory to which the Indian title had not been extinguished. It did provide:
76. The Governor in Council may—
(a) withdraw from the operation of this Act, subject to existing rights as defined or created thereunder, such lands as have been or may be reserved for Indians;
(b) grant lands in satisfaction of claims of half-breeds aris ing out of the extinguishment of the Indian title;
(e) upon the extinguishment of the Indian title in any terri tory or tract of land, make to persons satisfactorily establishing undisturbed occupation of any lands within the said territory or tract at the date of such extinguishment, by their own residence or that of their servants, tenants or agents, in actual peaceable possession thereof, free grants of the said lands, provided that an area not more than equal to a quarter-section shall be so granted to any one person unless there has been cultivation of . more than that area;
Apart from periodic consolidations, the 1908 Act remained in force, without pertinent amendment,
35 S.C. 1872, c. 23.
36 S.C. 1879, c. 31.
37 S.C. 1883, c. 17.
38 S.C. 1908, c. 20.
until replaced by The Territorial Lands Act 39 in 1950, which continues in force today. 40
Until 1950, Parliament had not, by general legislation, extinguished aboriginal title in the Northwest Territories. Indeed, it expressly con templated extinguishment as a future event.
The Territorial Lands Act makes no exemption of lands subject to unextinguished aboriginal title and, unlike its predecessor, it does not expressly contemplate the future "extinguishment of Indian title". The authority heretofore reserved to the Governor in Council by paragraph 76(a) is includ ed in the authority delegated by paragraph 19(d) of the present Act:
19. The Governor in Council may
(d) set apart and appropriate such areas or lands as may be necessary to enable the Government of Canada to fulfil its obligations under treaties with the Indians and to make free grants or leases for such purposes, and for any other purpose that he may consider to be conducive to the welfare of the Indians;
That is the only reference in the Act to any aboriginal inhabitants. In view of the fact that the lands ceded by the Indians under Treaties 8 and 11, concluded in 1899 and 1922 respectively, com prised all of the mainland of the Northwest Terri tories west of the Coppermine and Lockhart Rivers, it is understandable that the authorities of the Governor in Council under paragraphs 76(b) and 76(c) of the 1908 Act were considered obsolete by 1950. The demand, by half-breeds or anyone else, for the opportunity to settle east of those rivers or in the Arctic Islands must have been slight between 1922 and 1950.
The defendants argue that the removal by Par liament of the earlier express recognition of unex- tinguished "Indian title" is to be seen as an expres sion of its intention to extinguish aboriginal title. As part of my historical research, I referred to Parliamentary Reports pertinent to the enactment
39 S.C. 1950, c. 22.
40 R.S.C. 1970, c. T-6.
of the Territorial Lands Act. 41 The House of Commons dealt with the bill on May 10, 1950, at a session that began at 3:00 p.m. and adjourned at 5:50 p.m. In addition to oral questions and other routine proceedings, the House dealt with five bills that afternoon. Three, including the subject, were dealt with by second reading, Committee of the Whole and third reading. The Committee of the Whole finished dealing with the fourth and it passed third reading. The fifth passed second read ing. The entire consideration of the subject bill, second reading, Committee of the Whole, and third reading, occupies about six and one-quarter pages of the Report commencing at page 2364. The word "Indian" appears only where the spon soring Minister stated that the bill did not apply to lands "under the Indian Act". The word "Indian" does not otherwise appear in the report and the words "Eskimo", "Inuit" or "aborigine" do not appear at all. Debate in the Senate was consider ably less extensive. * While I cannot have regard to anything said in either House in interpreting the statute, it is, I think, fair to remark the irony implicit in the idea that such a basic right, particu larly vested in certain people, then helpless to look after their own interests, over whom Parliament had exclusive legislative competence, was, in 1950, so casually extinguished. Without regard to what was intended or achieved, it is an historic fact, of which I am entitled to take judicial notice, that, in enacting the Territorial Lands Act, Parliament did not expressly direct its attention to the extinguish- ment of aboriginal title.
The legislation which the defendants say amounts to the exercise by Parliament of "a sover eignty inconsistent with any conflicting interest, including one as to `aboriginal title' ", to adopt the terminology accepted by Mr. Justice Judson in the
41 The Senate of Canada, Official Report of Debates, 2nd Session, 21st Parliament, Vol. I. Official Report of Debates, House of Commons, 2nd Session, 21st Parliament, Vol. III.
* Records of the proceedings of Parliamentary committees were not routinely published in 1950. The consideration of the bill by the Senate Committee on Banking and Commerce would appear not to have been an exception. Nothing in its report to the Senate suggests that extinguishment of aboriginal title was considered by the Committee.
Calder decision includes certain provisions of the Territorial Lands Act, the Public Lands Grants Act 42 and the Northwest Territories Act. 43 The key provision is section 4 of the Territorial Lands Act:
4. Subject to this Act, the Governor in Council may author ize the sale, lease or other disposition of territorial lands and may make regulations authorizing the Minister to sell, lease or otherwise dispose of territorial lands subject to such limitations and conditions as the Governor in Council may prescribe.
"Territorial lands" are defined to include all inter ests in land in the Northwest Territories, including mines and minerals, vested in Her Majesty in right of Canada or of which the federal government has power to dispose. If there is any gap in the above authority of the Governor in Council to dispose of interests in land in the Northwest Territories, it is apparently filled by section 4 of the Public Lands Grants Act which authorizes the sale, lease or other disposition of public lands and the prescrip tion of limitations and conditions in respect of such disposition.
It is sufficient to summarize the other provisions of the Territorial Lands Act relied on. Sections 3.1 and 3.2 empower the Governor in Council to appropriate territorial lands as a land management zone and to make regulations and issue permits governing and allowing surface use in a zone. Section 8 authorizes the making of regulations for the leasing of mining rights in, on and under territorial lands. Paragraph 14(a) authorizes regu lations respecting permits to cut timber. Section 19 authorizes the Governor in Council to withdraw lands from disposition under the Act and to set apart and appropriate territorial lands for numer ous purposes, in addition to those set forth in paragraph 19(d) recited above, including public buildings, facilities and other purposes, ranging from burial grounds to bird sanctuaries and gaols to town-sites, and to authorize private acquisition of land for railways, power and pipe lines. Under section 13 of the Northwest Territories Act, the
42 R.S.C. 1970, c. P-29.
43 R.S.C. 1970, c. N-22.
Commissioner in Council has been delegated au thority to make ordinances in respect, inter alia, of property and civil rights, the preservation of game and to open roads on public lands.
I will merely note, at this point, that the Gover nor in Council and the Commissioner in Council have acted on their statutory authority in many areas. That fact and the purport of those regula tions and ordinances are not material to the ques tion of the complete extinguishment of aboriginal title. Such extinguishment must be effected by Parliament itself enacting legislation inconsistent with the continued existence of an aboriginal title; it cannot depend on the exercise of authority dele gated by that legislation. That is not to say that the rights comprised in an aboriginal title cannot be abridged by legislation, delegated or otherwise, without the title being completely extinguished.
The other statutory provisions summarized do not add anything significant to section 4 of the Territorial Lands Act. The land management zones referred to in sections 3.1 and 3.2 are a new concept introduced in 1970. 44 They may be invoked when the Governor in Council "deems it necessary for the protection of the ecological bal ance or physical characteristics of any area". It is difficult to see how the type of occupation implicit in the Inuit's aboriginal title would be inconsistent with those objectives. The 1908 Act expressly envisaged the future extinguishment of "Indian title". That necessarily implied a recognition of the existence of an unextinguished "Indian title". Sec tions 8, 14(a) and 19 of the present Act had their counterparts in sections 37, 59 and 76 of the 1908 Act. They were not fatal to a subsisting aboriginal title. The provisions of the Northwest Territories Act do not contribute to the extinguishment of aboriginal title. It turns entirely on section 4 of the Territorial Lands Act and, to the extent it adds anything, section 4 of the Public Lands Grants Act.
44 R.S.C. 1970 (1st Supp.), c. 48, s. 24.
There are significant differences between the situation that prevailed in northwestern British Columbia in the 1860's and those in the barren lands in 1950. The exchange of dispatches between the Colonial Office and Governor Douglas be tween July 31, 1858 and October 19, 1861, quoted by Mr. Justice Judson at pages 329 ff. of his Calder judgment, make clear that extinguishment of the "Indian title" was very much in mind when the proclamations issued and the ordinances were made. The legislation is explicit in its purpose to open up the territory to settlement. Although there were no treaties, particular lands had been set aside for Indians and these were excluded from the lands made available for settlement while, on the other hand, the Indians were expressly excluded from the right to take up the land that was made available. The conclusion of Mr. Justice Judson, at page 344, merits repetition:
In my opinion, in the present case, the sovereign authority elected to exercise complete dominion over the lands in ques tion, adverse to any right of occupancy which the Nishga Tribe might have had, when, by legislation, it opened up such lands for settlement, subject to the reserves of land set aside for Indian occupation.
In the case of the Inuit on the barren lands, the extinguishment of their aboriginal title was plainly not in Parliament's mind in 1950. The barren lands were not, for obvious reasons, being opened for settlement and so there was no reason to extinguish the aboriginal title. While section 4 of the Act is broad enough to permit dispositions of land for settlement purposes, one would have to be blind to the reality of the barrens to think a significant demand for settlement a practical pros pect. In repealing the 1908 Act, Parliament repealed, and did not replace, its comprehensive scheme to permit, indeed encourage, settlement of unoccupied Crown lands by way of homestead entry, pre-emption and purchase. Those provisions, sections 8 to 28 inclusive, stood in the same statute with paragraphs 76(b) and (c) which expressly contemplated extinguishment of Indian title as a future event.
Section 4 of the Territorial Lands Act is a competent exercise by Parliament of the right to dispose of the lands in question. However, disposi-
tions of the sort and for the purposes that Parlia ment might reasonably have contemplated in the barren lands are not necessarily adverse to the Inuit's aboriginal right of occupancy. Those which might prove adverse cannot reasonably be expect ed to involve any but an insignificant fraction of the entire territory. Extinguishment of the Inuit's aboriginal title is not a necessary result of legisla tion enacted since 1870. The aboriginal title in issue has not been extinguished.
THE MINING LAWS
No real doubt as to the validity of the mining laws has been raised in my mind. I do not, there fore, intend to recite them, except to the extent necessary to deal with the questions of whether, by virtue of their aboriginal title, the Inuit have "rights previously acquired" within the meaning of subsection 29(11) of the Canada Mining Regulations 45 and are "holders of surface rights" within the meaning of section 8 of the Territorial Lands Act.
With the exception of a number of parcels in the hamlet itself, I am entirely satisfied that the entire territory in issue remains "territorial lands" within the meaning of the Territorial Lands Act and "public lands" within the meaning of the Public Lands Grants Act. They are subject to the Canada Mining Regulations. To the extent that their aboriginal rights are diminished by those laws, the Inuit may or may not be entitled to compensation. That is not sought in this action. There can, how ever, be no doubt as to the effect of competent legislation and that, to the extent it does diminish the rights comprised in an aboriginal title, it pre vails. That point was succinctly made by Laskin C.J.C., for the Court, in Regina v. Derriksan. 46
On the assumption that Mr. Sanders is correct in his submis sion (which is one which the Crown does not accept) that there is an aboriginal right to fish in the particular area arising out of Indian occupation and that this right has had subsequent reinforcement (and we express no opinion on the correctness of this submission), we are all of the view that the Fisheries Act, R.S.C. 1970, c. F-14, and the Regulations thereunder which, so
45 C.R.C. 1978, Vol. XVII, c. 1516.
46 (1977) 71 D.L.R. (3d) 159 at p. 160.
far as relevant here, were validly enacted, have the effect of subjecting the alleged right to controls imposed by the Act and Regulations.
It was reiterated in Kruger v. The Queen." The Canada Mining Regulations provide:
29. ...
(11) The granting of a permit in respect of any prospecting permit area is subject to any rights previously acquired or applied for by any person in the area to which the permit applies.
Read in the context of the Regulations as a whole and the power of the Governor in Council to make them, the proper construction to be placed on the phrase "rights previously acquired" in subsection 29(1) is that it refers only to rights acquired pursuant to the Regulations.
Section 8 of the Territorial Lands Act provides:
8. The Governor in Council may make regulations for the leasing of mining rights in, under or upon territorial lands and the payment of royalties therefor, but such regulations shall provide for the protection of and compensation to the holders of surface rights.
Canadian courts have, to date, successfully avoid ed the necessity of defining just what an aboriginal title is. It is, however, clear that the aboriginal title that arises from The Royal Proclamation is not a proprietary right. 48 If the aboriginal title that arose in Rupert's Land independent of The Royal Proclamation were a proprietary right then it would necessarily have been extinguished by the Royal Charter of May 2, 1670, which granted the Hudson's Bay Company ownership of the entire colony. Their aboriginal title does not make the Inuit "holders of surface rights" for purposes of the section.
OTHER MATTERS
(a) Locus Standi
All the defendants, in argument, challenged the status of the corporate plaintiffs to maintain the
47 [1978] 1 S.C.R. 104.
48 St. Catherine's Milling and Lumber Company v. The Queen in right of Ontario (1889) XIV App. Cas. 46 at pp. 54 ff.
action. This was not raised in the pleadings and I do not, therefore, propose to dispose of it.
If the defendants had been serious, they would, no doubt, have raised the issue by way of a prelim inary objection. Had they done so, the status of the Inuit Tapirisat of Canada to seek the declaratory relief in a representative capacity and the like status of the Baker Lake Hunters and Trappers Association to seek the injunctive relief might well have been established and appropriate amendment of the pleadings allowed. The Hamlet of Baker Lake might have been in a different position. Be all that as it may, it would be unfair to give effect to the challenge at this stage, whatever the result might have been had it been raised at an appropri ate stage of the proceedings.
(b) Counterclaims
The defendants, Cominco Ltd. and Pan Ocean Oil Ltd., seek by counterclaim certain declarations involving the status of the lands in issue as "ter- ritorial" and "public" lands and the Inuit as per sons having "rights previously acquired" and being "holders of surface rights" under the mining laws. The plaintiffs say that the defendant mining com panies are not entitled to claim relief by way of counterclaim by reason of the order of March 29, 1979, by which they were joined as parties defendant.
That order reflected the express undertakings made by the defendant mining companies where upon the plaintiffs and the government defendants were induced not to oppose their application. It is to be noted that the action had, well before that date, been set down for trial and that their first application to be joined had been refused because of their unwillingness to accede to a timetable that would have permitted the trial to proceed on schedule. The order was silent as to counterclaims.
In the circumstances, it was incumbent upon the mining companies to disclose their intentions fully in advance of obtaining the plaintiffs' acquiescence in their joinder. It is entirely proper for the plain tiffs to insist on a strict interpretation of the order
to the effect that anything not expressly author ized is not authorized.
(c) Jurisdiction
The defendant mining companies, other than Essex Minerals Company Limited, pleaded that this Court has no jurisdiction to grant the injunc- tive relief sought against them. That challenge, of course, arises out of the Quebec North Shore Paper Company v. Canadian Pacific Limited 49 and McNamara Construction (Western) Limited v. The Queen 5° decisions of the Supreme Court of Canada. In the circumstances, it is unnecessary for me to add to an already too lengthy judgment and to the extensive jurisprudence already generated by those decisions.
(d) Interim Injunction
The interim injunction issued herein April 24, 1978, will be dissolved.
(e) Costs
I should be entirely prepared to entertain any motions the plaintiffs or government defendants may wish to make in respect of costs in light of the decision. Entry of judgment will be delayed until December 17, 1979, to permit such motions to be brought.
Costs, as they affect the defendant mining com panies, were anticipated in the order of March 29, 1979. I cannot see that there were any costs inci dental to the counterclaims.
CONCLUSION
The plaintiffs are entitled to a declaration that the lands comprised in District E2, the Baker Lake R.C.M.P. detachment area in 1954, excluding that portion, which has previously been more particu larly described, lying south and west of the Thelon and Kazan Rivers, are subject to the aboriginal right and title of the Inuit to hunt and fish there on. The action will otherwise be dismissed. The counterclaims of the defendants, Cominco Ltd. and Pan Ocean Oil Ltd., will be dismissed without costs.
49 [1977] 2 S.C.R. 1054.
50 [ 1977] 2 S.C.R. 654.
SCHEDULE "A"
In the Northwest Territories; in the District of Keewatin, all that tract of land being more par ticularly described as follows:
Commencing at a point on the right bank of the Dubaunt River at approximate latitude 63°50'30" and longitude 100°00'; thence due south to latitude 63°30'; thence due east to longi tude 97°30'; thence due south to latitude 62°45'; thence due east to longitude 95°00'; thence due north to latitude 63°00'; thence due east to longitude 94°00'; thence due north to latitude 64°00'; thence due east to longitude 92°30'; thence due north to latitude 64°30'; thence due west to longitude 95°00'; thence due north to latitude 65°00'; thence due west to longi tude 97°00'; thence due north to latitude 65°30'; thence due west to longitude 99°30'; thence due south to latitude 64°45'; thence due west to longitude 100°30'; thence due south to latitude 64°00'; thence due east to longitude 100°00'; thence due south to the point of commencement.
SCHEDULE "B"
ANNEXE «C» LÉGENDE
LIMITE DU DISTRICT DE KEEWATIN — ZONE OPÉRATIONNELLE DE LA G.R.C.— • — • — • — • — • — •
RÉGION DE BAKER LAKE LIMITE D'ARBORESCENCE-. ^ -/`.-/"\-/ ^ .
Lac Aberdeen — Ab Lac Garry — Ga Lac Sand — Sa
Lac Anjikuni — An Lac Grant — Gr Lac Schultz — Sc
Lac Baker — Bk Lac Kaminuriak — Km Lac Tebesjuak — Tb
Lac Beverly — By Chutes Kazan — Kz Lac Thirty Mile — Tm
lie Christopher — Ch Lac Mallery — MI Lac Wharton — Wh
Lac Dubaunt — Du Lac Marjorie — Mj Lac Yathkyed — Ya
Lac Ferguson — Fe Lac Pr. Mary — Pr
Hameau de Baker Lake — # Autres agglomérations — 0
SCHEDULE "C" LEGEND
KEEWATIN DISTRICT BOUNDARY ------------- R.C.M.P . DETACHMENT AREA - . - - - • - • - . - .
BAKER LAKE AREA TREE LINE ��"....."1.,/",./"...,W%f1,
Aberdeen Lake — Ab Garry Lake — Ga Sand Lake — Sa
Anjikuni Lake — An Grant Lake — Gr Schultz Lake — Sc
Baker Lake — Bk Kaminuriak L. — Km Tebesjuak Lake — Tb
Beverly Lake — By Kazan Falls — Kz Thirty Mile L. — Tm
Christopher Island — Ch Mallery Lake — MI Wharton Lake — Wh
Dubaunt Lake — Du Marjorie Lake — Mj Yathkyed Lake — Ya
Ferguson Lake — Fe Pr. Mary Lake — Pr
Hamlet of Baker Lake — # Other Communities — O
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