COURT OF APPEAL. Court of Appeal File No. V03364 Court of Appeal Registry Victoria COURT OF APPEAL

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1 Court of Appeal File No. V03364 Court of Appeal Registry Victoria COURT OF APPEAL ON APPEAL FROM THE ORDER OF THE HONOURABLE MR. JUSTICE R.D. WILSON OF THE SUPREME COURT OF BRITISH COLUMBIA, PRONOUNCED THE 12TH DAY OF NOVEMBER, 1998 BETWEEN: CHIEF COUNCILLOR MATHEW HILL, also known as Tha-lathatk, on his own behalf and on behalf of all other members of the Kitkatla Band, and KITKATLA BAND PETITIONERS (APPELLANTS) AND: THE MINISTER OF SMALL BUSINESS, TOURISM AND CULTURE, THE ATTORNEY GENERAL FOR THE PROVINCE OF BRITISH COLUMBIA and INTERNATIONAL FOREST PRODUCTS LIMITED RESPONDENTS (RESPONDENTS) AND: COUNCIL OF FOREST INDUSTRIES, LAX KW'ALAAMS INDIAN BAND, ALLIED TSIMSHIAN TRIBES ASSOCIATION and TRUCK LOGGERS ASSOCIATION INTERVENORS COURT OF APPEAL Court of Appeal File No. V03385 Court of Appeal Registry Victoria ON APPEAL FROM THE ORDER OF THE HONOURABLE MR. JUSTICE R.D. WILSON OF THE SUPREME COURT OF BRITISH COLUMBIA, PRONOUNCED THE 15TH DAY OF DECEMBER, 1998 BETWEEN: CHIEF COUNCILLOR MATHEW HILL, also known as Tha-lathatk, on his own behalf and on behalf of all other members of the Kitkatla Band, and KITKATLA BAND PETITIONERS (APPELLANTS)

2 AND: THE MINISTER OF SMALL BUSINESS, TOURISM AND CULTURE, THE ATTORNEY GENERAL FOR THE PROVINCE OF BRITISH COLUMBIA and INTERNATIONAL FOREST PRODUCTS LIMITED RESPONDENTS (RESPONDENTS) AND: COUNCIL OF FOREST INDUSTRIES, LAX KW'ALAAMS INDIAN BAND, ALLIED TSIMSHIAN TRIBES ASSOCIATION and TRUCK LOGGERS ASSOCIATION INTERVENORS REPLY FACTUM OF THE RESPONDENT, INTERNATIONAL FOREST PRODUCTS LIMITED TO THE INTERVENORS, LAX KW'ALAAMS INDIAN BAND AND THE ALLIED TSIMSHIAN TRIBES ASSOCIATION WOODWARD & COMPANY 4th Floor Courtney Street Victoria BC VOW 1C4 FULLER PEARLMAN Broad Street Victoria BC VOW 2A5 LADNER DOWNS 1200 Waterfront Centre 200 Burrard Street Vancouver BC V7X 1T2 RUSSELL & DUMOULIN West Georgia Street Vancouver BC V6E 3G2 RATCLIFF & COMPANY West Esplanade North Vancouver BC V7M 3J3 DAVIS & COMPANY Burrard Street Vancouver BC V6C 2Z7 Jack Woodward Robert J.M. Janes Counsel for the Appellants Paul J. Pearlman, Q.C. Counsel for the Respondents, The Minister of Small Business, Tourism and Culture and The Attorney General for the Province of British Columbia Patrick G. Foy, Q.C. William K. McNaughton Counsel for the Respondent, International Forest Products Limited Charles F. Willms Counsel for the Intervenor, Council of Forest Industries Harry A Slade, Q.C. John D. Mostowich Counsel for the Intervenors, Lax Kw'alaams Indian Band and the Allied Tsimshian Tribes Association John J.L. Hunter, Q.C. Counsel for the Intervenor, Truck Loggers Association

3 TABLE OF CONTENTS PRELIMINARY OBJECTION TO THE RECEIPT OF THE EVIDENCE SOUGHT TO BE ADDUCED: THE TSIMSHIAN INTERVENORS SHOULD NOT BE ALLOWED TO WIDEN THE ISSUES RAISED BY THE PARTIES (a) THE ISSUE OF CONSULTATION 1 (b) TSIMSHIAN SOCIAL ORGANIZATION 2 (c) THE GITWILGYOTS AND GITZALAAL CLAIMS TO ABORIGINAL RIGHTS AND TITLE IN THE KUMEALON WATERSHED 3 (d) THE B.C. TREATY PROCESS 3 INTERFOR'S POSITION ON THE FRESH EVIDENCE SOUGHT TO BE ADDUCED BY THE INTERVENOR, COFI ADDITIONAL SUBMISSIONS 5 FIRST PRINCIPLES 9 SECTIONS 12 AND 13 OF THE HERITAGE CONSERVATION ACT 14 APPENDIX "A" - EXCERPT OF TRANSCRIPT OF PROCEEDINGS AT TRIAL, JUNE 19, 1998 APPENDIX "B" - DRAFT ORDER OF HALL J.A. PRONOUNCED JUNE 15, 1999 IN CA V APPENDIX "C" - DRAFT ORDER OF HALL J.A. PRONOUNCED JUNE 15, 1999 IN CA V LIST OF AUTHORITIES 23

4 PRELIMINARY OBJECTION TO THE RECEIPT OF THE EVIDENCE SOUGHT TO BE ADDUCED: THE TSIMSHIAN INTERVENORS SHOULD NOT BE ALLOWED TO WIDEN THE ISSUES RAISED BY THE PARTIES 1. The Allied Tsimshian Tribes Association and Lax Kw'alaams Indian Band (the "Tsimshian Intervenors") move to adduce new affidavit material. Interfor objects to the receipt of this material. The new material raises new issues not raised by the parties. As Seaton J.A. noted in A.G. Canada v. Aluminum Co. of Canada (1987), 35 D.L.R. (4th) 495 at 507: Intervenors should not be permitted to take the litigation away from those directly affected by it. Parties to litigation should be allowed to define the issues and seek resolution of matters they determine appropriate to place in issue. They should not be compelled to deal with issues raised by others. 2. In this Court, in the Supreme Court of Canada (see Rules of the Supreme Court of Canada, Rule 18(5)(b)) and in the United States courts, intervenors are bound by the case on appeal and may not add to it unless an order is made by the court. In Apsassin v. Her Majesty the Queen in Right of Canada, unreported (March 9, 1994), Cory J. said: Submissions of intervenors can often be of great assistance to the court. Yet if they range too far from the issues presented in the appeal they could become unfair to the principal litigants. For example do they require the presentations and consideration of fresh evidence? If they do it will probably be so prejudicial to one or both of the parties that the submission should not be considered. 3. By the affidavits sought to be adduced, and by the submissions made on those affidavits, the Tsimshian Intervenors seek to widen the issues raised by the parties on these appeals in the following respects: a) the issue of consultation in the Crown's grant of tenures; b) Tsimshian social organization; c) the claim of the Gitwilgyots and the Gitzalaal to aboriginal rights and title in the Kumealon watershed; d) the B.C. Treaty Process. (a) THE ISSUE OF CONSULTATION 4. The Affidavit of Kim Kayley sworn June 1 1, 1999, attaches as Exhibit "A" a copy of the Province's "Consultation Guidelines" dated September The final paragraphs of

5 the Tsimshian Intervenors' Factum argue that the Crown is not able to "grant tenures over land... except in cases where title or other rights have been finally adjudicated", and that "[t]he Crown is obligated... to consult with First Nations when Crown actions may infringe their rights." Tsimshian Intervenors' Factum, paragraphs 66, On these appeals, the parties have agreed that the issue of the adequacy of consultation with First Nations does not arise. Insofar as consultation with the Kitkatla is concerned, extensive evidence that was filed in the record below was not included in the Appeal Book because it was agreed that consultation was not an issue on the appeal. 6. Insofar as consultation with the Tsimshian Intervenors is concerned, on the application for leave to intervene, counsel for the Tsimshian Intervenors conceded that the adequacy of consultation with his clients also was not an issue. Counsel for the Tsimshian Intervenors confirmed that no issue would be taken with the correctness of Donald J.A.'s summary, as set out in paragraph 7 of Interfor's Respondent's Factum (No. V03385), as follows: The Lax Kw'alaams First Nation have claimed interests in the area surrounding Kumealon Inlet and Kumealon Lagoon for a number of years. Interfor has provided notices to and consulted with the Lax Kw'alaams First Nation concerning logging plans in this area for many years. The Lax Kw'alaams have agreed to the terms of the Site Alteration Permit in question here. Reasons of Donald J.A., Appeal Book, Vol. VII, pp , paragraph In a case in which the issue of consultation has not been raised, it is not appropriate, or necessary to examine the Crown's Consultation Guidelines. The Affidavit of Kim Kayley should not be admitted. The submissions on the Crown's duty to consult before granting tenures over land subject to aboriginal claims should not be permitted. 8. If this material is admitted, and the Court considers these submissions, Interfor seeks an opportunity to file additional evidence with this Court and an opportunity to respond to these submissions. (b) TSTMSHIAN SOCIAL ORGANIZATION 9. Again, this is not an issue raised by the parties on this appeal. The evidence sought to be adduced (the Bryant Affidavit) should not be admitted. It introduces issues of fact that were not canvassed below and are not accepted. 10. In the interlocutory injunction proceedings before Hutchison J. in the aboriginal rights and title claim made by the Kitkatla (Action No , Victoria Registry), Interfor adduced historical documents and anthropological articles respecting the Tsimshian peoples. Since no issue has been raised in these proceedings respecting these materials, they are not before the Court.

6 11. In their application to intervene in the Court of Appeal in the interlocutory injunction proceedings in the aboriginal rights and title claim, the Tsimshian Intervenors were directed by this Court to seek to be joined as parties to the Kitkatla's aboriginal rights and title claim. It is in those proceedings that the Bryant Affidavit might be relevant. Reasons of Hollinrake J.A., Hill et al. v. Minister of Forests et al. (July 3, 1998) Vancouver Registry CAQ24761 (B.C.C.A.). 12. The Tsimshian Intervenors' submissions on Tsimshian social organization and their related submissions in respect of their claim to aboriginal rights and title, discussed below, should not be canvassed on this appeal. (c) THE GITWILGYOTS AND GITZALAAL CLAIMS TO ABORIGINAL RIGHTS AND TITLE IN THE KUMEALON WATERSHED 13. It is common ground that a number of aboriginal groups make overlapping claims to aboriginal rights and title in the Kumealon watershed. As noted above, the substance of these claims is raised in the aboriginal rights and title proceedings (Action No , Victoria Registry). 14. The Tsimshian Intervenors are incorrect in their assertion that the Appellants are not alleging rights to the exclusion of other aboriginal groups (Tsimshian Intervenors' Factum, paragraph 12). Although the Appellants point out that they have deleted a plea of aboriginal title to the Kumealon watershed in the Amended Petition, their argument continues to assert an exclusive claim - a claim to the preservation of all CMTs in the Kumealon watershed, as follows: (a) they allege the CMTs are "located in the traditional territory of the Kitkatla Band" (Appellants' Factum, No. V03385, paragraphs 2, 4, 6); (b) they say that the CMTs are "a key aspect of Kitkatla's distinctive identity as a First Nation" (Appellants' Factum, No. V03385, paragraph 8); (c) they allege an aboriginal right to "preservation" of its CMTs in the Kumealon, as part of a more general aboriginal right to the preservation of "its heritage objects and sites" (emphasis added) (Appellants' Factum, No. V03385, paragraph 8). 15. Donald J.A. recognized that the Appellants were making a claim to exclusive rights to "preserving all the CMTs in the subject area." (Emphasis added.) Reasons of Donald J.A., A.B., Vol. VII, p. 1292, paragraph In the oral submissions made in the interlocutory injunction proceedings in the Kitkatla's aboriginal right and title claim (Action No , Victoria Registry), counsel for the Tsimshian Intervenors made it clear that if the Kitkatla were making an exclusive claim then his clients opposed that claim, stating:... if exclusive rights are being asserted [by the Kitkatla] it's my client's position that those rights don't exist.

7 Transcript of proceedings before Hutchison J., June 19, 1998, Action No , p. 7, ll (Appendix "A"). 17. Moreover, the Tsimshian Intervenors now allege as follows: (a) the CMTs are within the traditional territory of the Gitwilgyots and Gitzalaal Tribes (Tsimshian Intervenors' Factum, paragraph 11); (b) it is probable that the ancestors of the Gitwilgyots and the Gitzalaal were the persons who culturally modified the CMTs in question (Tsimshian Intervenors' Factum, paragraph 11); (c) the Tsimshian Intervenors assert that (CMTs are physical evidence used to support their claims to aboriginal rights and title to the Kumealon watershed in court or in the treaty process (Tsimshian Intervenors' Factum, paragraphs 35-36). 18. Interfor agrees with the Tsimshian Intervenors that the dispute over aboriginal rights and title involves matters that must be determined a: "a full hearing, in a trial" (Tsimshian Intervenors' Factum, paragraph 14) and are not properly part of these proceedings. (d) THE B.C. TREATY PROCESS 19. The treaty process is not before this Court. The issue of judicial supervision of the B.C. Treaty Process is before this Court in another case - Gitanyow First Nation v. Canada (Attorney General) (March 23, 1999) Vancouver Registry C (B.C.S.C.) (pending appeal in this Court CA and CA025808), scheduled for hearing February 21 through 23, The selected documents concerning the B.C. Treaty Process attached to the Affidavit of Mr. Bryant should not be admitted in these proceedings. 21. In summary, no submissions should be allowed which depend upon the presentation or consideration of any of the fresh evidence sought to be adduced by the Tsimshian Intervenors. INTERFOR'S POSITION ON THE FRESH EVIDENCE SOUGHT TO BE ADDUCED BY THE INTERVENOR, COFI 22. The same objection does not apply to the evidence sought to be adduced by COFI. 23. The evidence sought to be adduced by COFI does not widen the issues between the parties; instead, it provides a broader perspective so that the court can see some of the impact and implications of the issues that have been raised by the parties. As noted by New York's highest court in Niesig v. Team I, 76 NY 2d 363 (1990) at , intervenors have been encouraged and praised for "enlarg[ing] our comprehension of the broad potential impact of issues presented".

8 24. It is appropriate for intervenors to make the court aware of unintended ramifications of rulings on a particular issue. As was noted by Macfarlane J.A. in allowing the intervention by COFI, the material sought to be adduced by COFI does not widen the list, it "broadens the horizon" so that the court can see the implications of the issues that are raised by the parties. ADDITIONAL SUBMISSIONS 25. The Tsimshian Intervenors advance their submissions under the heading "The Aboriginal Right to the Protection of Cultural Resources and Properties". 26. As noted above, claims to aboriginal rights and title, including claims to the protection of all CMTs in the Kumealon watershed, are the subject of the aboriginal rights and title proceedings in the Supreme Court (Action No , Victoria Registry). 27. The questions in this case involve statutory construction, and were argued below on that basis. In similar circumstances, it was recently noted by Newbury J.A. (Prowse J.A. concurring, Lambert J.A. dissenting) in Osoyoos Indian Band v. Town of Oliver (May 4, 1999) Victoria Registry V03036 (B.C.C.A.) at paragraph 85: In these circumstances, I do not think it appropriate to enter into an analysis of aboriginal title in connection with the stated questions and it seems to me unnecessary to do so. 28. Interfor agrees with the Tsimshian Intervenors (Tsimshian Intervenors' Factum, paragraph 14) that the existence and scope of aboriginal rights and title can only be dealt with in a full trial. As noted above, those issues are not before the Court on this appeal. Interfor does not propose to address the specific submissions made with respect to these Intervenors' claim to aboriginal title and rights, but a few general points will be noted, not with a view to obtaining resolution of those issues, but to demonstrate that the Tsimshian Intervenors' submissions ought not to be relied upon. 29. The Tsimshian Intervenors' Factum is internally inconsistent. In paragraph 26 they assert, correctly, that aboriginal title is not presumed but is a matter of proof, the onus of which falls to the claimant. Then, in subparagraph 6 of paragraph 23, the Tsimshian Intervenors assert that in the past the Province has granted interests in lands and resources that were 'presumptively" those of First Nations. There is no evidence of this before the Court. Moreover, it does not follow from the existing authorities. 30. Aboriginal title cannot be expected to be made out everywhere in a group's claim to "traditional territories". See R. v.adams, [1996] 3 S.C.R. 101; R.v.Cote', [1996] 3 S.C.R. 139;

9 Delgamuukw v. British Columbia, [1997] 3 S.C.R (S.C.C.), paragraph As noted by Hutchison J. in the interlocutory injunction proceedings in the aboriginal rights and title proceedings: But there has not yet been any territory of British Columbia that I am aware of having been declared as being held under aboriginal title. Hill et al. v. Minister of Forests et al. (June 25, 1998) Victoria Registry (B.C.S.C.), Reasons of Hutchison J., paragraph In Delgamuukw, supra, the Supreme Court of Canada did not resolve whether the claimants had established title to any of their claimed traditional territory. Lamer C.J.C. said that it would be open to the new trial judge to make all or some of the same findings of fact made by the trial judge (see paragraph 108). In this regard, it is worthwhile to note that in the Court of Appeal decision in Delgamuukw, Macfarlane J.A. said at <1993), 104 D.L.R. (4~) 470 at 499: The plaintiffs did not establish to the satisfaction of the trial judge that they had the requisite exclusive possession of land to make out their claim for ownership except in locations already within reserves. [Emphasis added.] 33. Contrary to the Tsimshian Intervenors' assertion in paragraph 24, there has been a considerable body of federal legislation directed at the protection of aboriginal land rights in British Columbia: for example, An Act to Amend Certain Laws Respecting Indians, S.C. 1874, c. 21; the Indian Act from 1876 to the present; the British Columbia Indian Lands Settlement Act, S.C. 1920, c. 51; the Railway Belt and Peace River Block Act, S.C. 1930, c. 37; P.C , dated February 3, 1930; P.C , dated July 19, 1924, and other pieces of federal legislation. 34. Contrary to paragraph 25, it is not correct to assert that Indian Act reserves were established independently of any recognition of an Indian interest in land. Colonial legislation protected from encroachment all Indian village sites and the land that they "have been accustomed to cultivate", that is, the lands actually possessed by Indians. As noted by McEachern C.J.B.C. in Delgamuukw v. British Columbia, [1991] 3 W.W.R. 97 at 262 (B.C.S.C.): And further:...the unequivocal fact that the Crown, while recognizing aboriginal possession of village sites, was both setting aside reserves and marketing the unoccupied balance of the colony. 35. Thus, it is clear that Indian reserves were established upon the basis of recognition of aboriginal possession of those lands actually occupied by Indians. 36. Interfor agrees with the Tsimshian Intervenors that, outside those lands actually occupied:

10 ... there was no impediment to settlement and the comprehensive granting of third party interests pursuant to validly enacted provincial legislation. Tsimshian Intervenors' Factum, paragraph 28. FIRST PRINCIPLES 37. The Tsimshian Intervenors submit that a number of first principles apply to the disposition of these appeals. They articulate a series of incomplete propositions which are not tied to the disposition of any of the issues on these appeals. None of the propositions go to the issue of whether the federal Parliament has exclusive jurisdiction to make laws that may affect the heritage value of objects that may have been modified by ancestors to First Nations. 38. Interfor responds to the "first principles" as follows. (1) The references to federal jurisdiction under s. 91(24) are incomplete and speak only to the extinguishment of aboriginal rights, which is not an issue here. As noted by this Court in R. v. Alphonse (1993), 80 B.C.L.R. (2d) 17, legislation does not become invalid from a constitutional division of powers point of view because it may affect claimed or established aboriginal rights. Reasons of Wilson J., A.B., Vol. VII, pp , paragraphs 36, As noted by Lamer C.J.C. in Delgamuukw v. British Columbia, [1997] 3 SCR 1010, at para. 160: The aboriginal rights recognized and affirmed by s.35(1), including aboriginal title, are not absolute. Those rights may be infringed, both by the federal (e.g. Sparrow) and provincial (e.g. Cote) governments. 40. Moreover, at paragraph 179, Lamer C.J.C. stated in unequivocal terms that provincial laws of general application could apply to lands reserved for Indians: In other words, notwithstanding s. 91(24), provincial laws of general application applyproprio vigore to Indians and Indian lands. (Emphasis added.) 41. As noted in Bell Canada v. Quebec, [1988] 1 S.C.R. 749 at 762:... works, such as federal railways, things, such as land reserved for Indians, and persons, such as Indians, who are within the special and exclusive jurisdiction of Parliament, are still subject to provincial statutes that are general in their application, whether municipal legislation, legislation on adoption, hunting or the distribution of family property, provided however that the application of these provincial laws does not bear upon those subjects in what makes them specifically of federal jurisdiction: (2) There is no issue of aboriginal title in these proceedings. 43. (3), (4) and (5) See the more complete discussion on the effect of s. 88 in the Factum of the Respondents, The Minister of Small Business and the Attorney General.

11 44. (6) Her Majesty the Queen in right of British Columbia is not a fiduciary in all relationships with Indians. Accepting, for the purposes of argument, that a fiduciary relationship can arise between her Majesty in right of British Columbia and First Nations in some circumstances, not every aspect of that relationship takes the form of fiduciary obligations. The nature of the relationship defines the scope of the obligations, if any. In Quebec (Attorney General) v. Canada (National Energy Board) (1994), 112 D.L.R. (4th) 129, the Supreme Court of Canada outlined the general rule, speaking of Her Majesty in right of Canada, at pp : It is now well-settled that there is a fiduciary relationship between the federal Crown and the aboriginal peoples of Canada... None the less, it must be remembered that not every aspect of the relationship between fiduciary and beneficiary takes the form of a fiduciary obligation... The nature of the relationship between the parties defines the scope, and the limits, of the duties that will be imposed.... The function of the [National Energy] Board in this regard is... inherently inconsistent with the imposition of a relationship of utmost good faith between the Board and a party appearing before it. 45. The law of fiduciary duties in the aboriginal context has not been interpreted to place the Crown in the position of having to forego its public law obligations. Rothstein J. said in Anderson et al. v. Canada (Attorney General) (November 12, 1998) No. T (F.C.T.D.) at paragraph 67: Finally, to find a fiduciary duty... would place the government in a conflict between its responsibility to act in the public interest and its fiduciary duty of loyalty to the Indian band to the exclusion of other interests. In the absence of legislative or Constitutional provisions to the contrary, the law of fiduciary duties, in the aboriginal context, cannot be interpreted to place the Crown in the untenable position of having to forego its public law duties when such duties conflict with Indian interests. 46. Even Canada, when acting in a capacity other than the Department of Indian Affairs, is allowed to balance other interests against the interest of Indians. In Kruger et al. v. The Queen, [1985] 3 C.N.L.R. 15 (F.C.A.), a case regarding the taking of land for Penticton airport, the majority said:... from the perspective of the Crown in its Department of Transport incarnation, there were competing considerations.... If the submission advanced by the appellants were to prevail, the only way that the Crown could successfully escape a charge of breach of fiduciary duty in such circumstances would have been, in each case, to have acceded in full to their demands or to withdraw from the transactions entirely. The competing obligations on the Crown could not permit such a result. The Crown was in the position that it was obliged to ensure that the best interests of all for whom its officials had responsibility were protected. The Governor in Council became the final arbiter. (At pp )

12 47. A similar conclusion follows from the decision of the Supreme Court of Canada in Blueberry River Indian Band v. Canada, [1996] 2 C.N.L.R. 25. In that case, surrendered reserve lands had been transferred to another federal official, the Director under the Veterans Lands Act ("DVLA") and it was argued by a band that he was charged with the same fiduciary duties as Indian Affairs. This proposition was rejected:... the DVLA and the DIA [Department of Indian Affairs] acted at arm's length throughout, as was appropriate given the different interests they represented and the different mandates of their statutes. Per McLachlin J. at p. 62, dissenting on another point. 48. The Tsimshian Intervenors assert that the Crown is indivisible. A monolithic view of the indivisibility of the Crown has been rejected in the modern cases. P.W. Hogg, Constitutional Law of Canada, 4th Ed. Loose-leaf (Toronto: Carswell, 1997) states at p. 10-2: There is only one individual at any time who is the Queen (or King). The Crown accordingly has a monolithic connotation, which has sometimes been articulated in dicta such as that the Crown is "one and indivisible". For nearly all purposes the idea of the Crown as one and indivisible is thoroughly misleading... The divisibility of the Crown was explicitly recognized in the Alberta Indians case [R. v. Secretary of State for Foreign and Commonwealth Affairs; Ex parse Indian Assn. of Alta. [1982] Q.B. 892 (C.A.)] 49. This analysis has been adopted in this province by Esson C.J.S.C. (as he then was) in British Columbia (Attorney General) v. Canada (Attorney General) (January 6, 1990) Victoria Registry (B.C.S.C.). 50. (8) There is no issue in this appeal as to the adequacy of consultation, either with the Kitkatla, or with the Tsimshian Intervenors. 51. In paragraphs 32 and 36, the Tsimshian Intervenors emphasize the importance of CMTs as physical evidence used to document the use and occupancy of particular sites by particular First Nations. As noted by Donald J.A.: It is not possible to tell which aboriginal group culturally modified the trees. Reasons of Donald J.A., A.B., Vol. VII, p. 1291, paragraph Whatever evidentiary value the CMTs may have is completely preserved, if not enhanced, by the archaeological studies and reports commissioned at Interfor's expense and by the preservation of trees that are cut for further study. 53. The Tsimshian Intervenors submit that, because these modifications may have been made by ancestors of First Nations people, they are evidence of an aboriginal right. That does not follow. There is no evidence that taking bark strips from trees had been a central and significant part of aboriginal custom in the sense that it was an element of a custom integral to the distinctive culture of the group to which the ancestors of the Kitkatla or the

13 Tsimshian Intervenors belonged. Evidence that an activity had been an aspect of aboriginal life is not sufficient to establish aboriginal rights. R. v. Sparrow, [1990] 1 S.C.R at 1097; R. v. Van der Peet, [1996] 2 S.C.R. 507 at 526; Dillon v. Davies, [1998] TASSC 60 (May 20, 1998) (S. Tasmania). 54. In paragraphs 38 and 66, the Tsimshian Intervenors refer to the interlocutory injunctions granted in MacMillan Bloedel v. Mullin; Martin v. The Queen in Right of B. C. [1985] 2 C.N.L.R. 26 (B.C.S.C.), [1985] 2 C.N.L-R. 58 (B.C.C.A.), and Hunt v. Halcan Log Services Ltd. (1986), 15 B.C.L.R. (2d) 165. As noted elsewhere, an interlocutory injunction based upon claimed aboriginal rights and title to the CMTs in question was dismissed in the aboriginal rights and title action. The cases now referred to were expressly considered there. SECTIONS 12 AND 13 OF THE HERITAGE CONSERVATION ACT 55. The Tsimshian Intervenors adopt the argument made by the Appellants but they are more candid in admitting, in paragraphs 52-54, that the premise of their argument is based upon an assumption of proof of aboriginal title by a First Nation to the Kumealon watershed. As noted, this is inconsistent with their concession in paragraph 26 that aboriginal rights are not presumed and, in any event, aboriginal rights do not fall to be determined in these proceedings. ALL OF WHICH IS RESPECTFULLY SUBMITTED. June 30, 1999 LIST OF AUTHORITIES Patrick G. Foy, Q.C. Counsel for the Respondent, Intenational Forest Products Limited A.G. Canada v. Aluminum Co. of Canada (1987), 35 D.L.R. (4~) 495 (B.C.C.A.) 1 Anderson et al. v. Canada (Attorney General) (November 12, 1998) No. T (F.C.T.D.) Apsassin v. Her Majesty the Queen in Right of Canada, unreported (March 9, 1994, S.C.C.)

14 Bell Canada v. Quebec, [1988] 1 S.C.R. 749 Blueberry River Indian Band v. Canada, [1996] 2 C.N.L.R. 25 (S.C.C.) British Columbia (Attorney General) v. Canada (Attorney General) (January 6, 1990) Victoria Registry (B.C.S.C.) Delgamuukw v. British Columbia, [1991] 3 W.W.R. 97 (B.C.S.C.) Delgamuukw v. British Columbia, (1993), 104 D.L.R. (40') 470 (B.C.C.A.) Delgamuukw v. British Columbia, [1997] 3 S.C.R (S.C.C.) Dillon v. Davies, [1998] TASSC 60 (May 20, 1998) (S.C. Tasmania) Gitanyow First Nation v. Canada (Attorney General) (March 23, 1999) Vancouver Registry C (B.C.S.C.) Hill et al. v. Minister of Forests et al. (June 25, 1998) Victoria Registry (B.C.S.C.) Hill et al. v. Minister of Forests et al. (July 3, 1998) Vancouver Registry CA (B.C.C.A.) Hunt v. Halcan Log Services Ltd. (1986), 15 B.C.L.R. (2d) 165 (B.C.S.C.) Kruger et al. v. The Queen, [1985] 3 C.N.L.R. 15 (F.C.A.) MacMillan Bloedel v. Mullin; Martin v. The Queen in Right of B.C. [1985] 2 C.N.L.R. 26 (B.C.S.C.), [1985] 2 C.N.L.R. 58, 61 B.C.L.R. 145 (B.C.C.A.) Niesig v. Team I, 76 NY 2d 363 (1990) Osoyoos Indian Band v. Town of Oliver (May 4, 1999) Victoria Registry V03036 (B.C.C.A.) Quebec (Attorney General) v. Canada (National Energy Board) (1994), 112 D.L.R. (4th) 129 (S.C.C.) R. v. Adams, [1996] 3 S.C.R. 101 R. v. Alphonse (1993), 80 B.C.L.R. (2d) 17 (B.C.C.A.) R. v. Cote, [1996] 3 S.C.R. 139 R. v. Sparrow, [1990] 1 S.C.R. 1075

15 R. v. Van der Peet, [1996] 2 S.C.R. 507 SECONDARY SOURCES Hogg, Constitutional Law of Canada, 4~ Ed. Loose-leaf (Toronto: Carswell, 1997) p LEGISLATION An Act to Amend Certain Laws Respecting Indians, S.C. 1874, c. 21 British Columbia Indian Lands Settlement Act, S.C. 1920, c. 51 Indian Act, from 1876 to present P.C , dated February 3, 1930 P. C , dated July 19, 1924 Railway Belt and Peace River Block Act, S.C. 1930, c. 37 Rules of the Supreme Court of Canada, Rule 18(5)(b)