Court File No. 23799
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HER MAJESTY THE QUEEN IN RIGHT OF
THE PROVINCE OF BRITISH COLUMBIA
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XSGOGIMLAHXA, applying on his own behalf and on behalf
of all the members of the HOUSE OF XSGOGIMLAHXA
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THE ATTORNEY GENERAL OF CANADA
For the appellant Xsgogimlahxa
For the appellants Delgamuukw, et al (Vancouver)
BRYAN WILLIAMS, Q.C. [now Chief Justice of British Columbia]
For the respondent Attorney General of British Columbia
S. DAVID FRANKEL, Q.C.
For the respondent Attorney General of Canada (Vancouver)
Page Motion to strike out 1 Motion to state constitutional question 21 Motion for an interim injunction 29 Decision 35 Ottawa (Ontario)
SISIS links to related documents:
Affidavits by Margaret Clark in support of Sep. 12 action
Interview with Dr. Bruce Clark on Supreme Court action
--Upon commencing at 11:00 a.m.
LAMER C.J.: Delgamuukw, et al, including Xsgogimlahxa v. Her Majesty the Queen in Right of the Province of British Columbia, et al. Mr. Bruce Clark for the appellant Xsgogimlahxa. Mr. Stuart Rush for the appellants Delgamuukw, et al, in Vancouver. Mr. Bryan Williams, Q.C., for the respondent Attorney General of British Columbia. Mr. S. David Frankel, Q.C., for the respondent Attorney General of Canada, also in Vancouver.
So we have three (3) motions. I guess in all logic we should address the third one, the motion on behalf of the Attorney General of British Columbia to strike out. Then we will proceed with the other two (2) thereafter.
Yes, Mr. Williams.
"Mr. Hopkins in person now moved that in consequence of Messrs. Roy and company, the plaintiff solicitors in this cause or others, solicitors who are legally on the record having refused to proceed further on the case, I George Hopkins and Mary my wife may be at liberty to bring before Master etc. etc. separate representation."This application is supported by the affidavit of Mr. Hopkins stating that the proceedings in the Master's office had not been conducted to his satisfaction. The Master of the Rolls says this:
"Mr. and Mrs. Hopkins may, in concurrence with the other four (4) co-plaintiffs, remove their solicitor and the other four (4) may allow him to conduct the proceedings for all. But if the plaintiffs do not all concur, Mr. Hopkins cannot take a course of proceedings different from and apart from other plaintiffs. The consequence would be that their proceedings might be totally inconsistent. When a person is under the prosecution of a suit, they must make up their minds whether they will become co-plaintiffs or if they do they must act together. I cannot allow one of the several plaintiffs to act separately and inconsistent with the others. The motion is refused."Now, my Lords, there are a number of other cases. I should say that my second point on this is simply that in certain circumstances it is clear that separate representation would not create a problem. For example, there is a case at Tab S that I will not read, which involves a counterclaim. I think it is the classic case where the plaintiffs sued, the defendant defended and counterclaimed against the plaintiffs. But the plaintiffs' insurers wanted to be there to defend the counterclaim and the court in that case that is fine because there is not really any problem with a separate claim bearing a counterclaim and two (2) representations in that regard.
Now the next case is an important one. It is the Lewis case which is found at Tab 2, and again, I will try to be brief. It is a libel action. On page 713, I will read a passage if I may, in the second complete paragraph. It simply says:
"The real problem, however, arises in respect of representation."Down to (d) in the margin:
"For the separate representation to continue and to make consequential provisions for suitable ... that situation."But I think it is right to go further, whether it was right in the first instance that such separate representation should be created. In my view, it was not regular and not in accordance with the proper practice that two (2) firms of solicitors should be placed on the record as representing Mr. Lewis and the plaintiff company separately.
Skipping down three (3) or four (4) lines:
"Then the question arises whether that is something which can properly be done or something which ought not to be done except with the leave of the court."And that is my second point, that there is of course in the cases as they unfold a provision whereby one can apply to the court for leave to obtain separate representation.
"The defendants have acquiesced in this position."I am reading from page 714:
"It might be contended that they have waived any right which they might have had. However, that could not be the final answer to the present case because there is interests of the court itself having actions properly constituted so that regular trials may be had."And here is an irregular situation. Justice on page 715 says to the same effect:
"I will only add what has been said, a word on the question of representation."And then further down at (h) in the margins he says:
"I do not think it would be right to make an order for complete separate representation. It would impose an unfair burden on the defendants with such differences as there may be between the two (2) plaintiffs and do not justify it."And finally Lord Justice Sellers says on page 716:
"I also agree. The confusion in this case has been very largely brought about by what was done irregularly on or about July when Mr. Lewis changed his solicitors and became separately represented from his co-plaintiffs, the company."Now the point here is that no leave has been applied for in this case and if leave were applied for I would have to oppose. The reason I would have to oppose is when you look at the Rush affidavits, the affidavits filed by my learned friend Mr. Rush, by Delgamuukw and Joseph, you will see that the case which was put before the Supreme Court of British Columbia was a case for ownership and jurisdiction of the land asking the court for relief. The court there was asked for damages declarations and other relief. That case went through the Court of Appeal and we were some six (6) weeks in the Court of Appeal dealing with the issues of jurisdiction, dealing with the issues of aboriginal title and relief.
S0PINKA J.: Those cases are cases at trial. Does the same thing apply to appeal? I mean, some people might not want to appeal. Some might want to appeal. There are differentiations made at the trial with respect to the judgment. I wonder if that rule is applied strictly in respect of appeals. Do you have to stick together throughout?
MR. BRYAN WILLIAMS, Q.C.: [Microphone failing] If you look at the case, my Lord, that was in the U.K. Court of Appeal and if you look at the Lewis case you will see that that case went all the way up to the Privy Council and back again and all the way up to the Court of Appeal. So I am submitting to you, and I think that Chief Justice Esson's decision may answer that question. There are three (3) alternatives and I will come to that if I may, but I believe it does apply to appeal and it applies in this Court as well, in my respectful submission.
Now what I am saying here is that the reason why I would oppose if leave were requested is purely and simply that, in the case that was put before the Supreme Court, the Court of Appeal and the case that is filed here for leave, the materials in our brief as to what they are asking for, they are asking for nothing that is even close to this. Indeed this is quite inconsistent. We have here a motion brought by one (1) of fifty one (51) plaintiffs which is not in the pleadings, which was never argued below and which says that this Court does not have any jurisdiction to grant the very relief that is being sought by the other fifty one (51) plaintiffs.
The Attorney General of Canada case which is in Tab 3 of my brief is the last case that I will cite. It is a very important one. It is a decision of Mr. Justice Esson, as he then was. I would refer first of all to page 494 at Tab 3. He is talking about the rules not expressly forbidding separate representation but he is analyzing what has happened in that case. That was a case indeed. It involved native lands in Penticton, a claim against the CPR that the properties which they had for a right of way should revert back to the Crown for native use. On page 494, three quarters of the way down, the paragraph that says:
"However, the rule of practice as established by the cases is that plaintiffs who sue together must be jointly represented. That was considered a settled rule of practice long before adjudicature acts."And he cites the Weatherburn case.
"That was held to be a correct state of the law in 1964 when the question came before the Court of Appeal in England in Lewis."And then he goes on with an analysis of the Lewis case over to page 496. At page 496, he says this, just after the quote:
"Although I have been referred to no British Columbia case on the subject, the English rule of practice has been followed in this province. One case in which it was enforced was CPR v. Building Materials Construction and Drivers and the International Brotherhood of Teamsters."And then he analyses that case. That is the case where Mr. Douglas McKay Brown and Mr. John Laxton were fighting over who should be representing the plaintiffs and they eventually got together. Now the important part about his judgment in my view is the last two pages which is 497, where he says, two thirds of the way down:
"The appropriate order here is that the action be stayed until the irregularity is removed."He says:
"1. That can be done by the plaintiffs electing to be jointly represented and delivering an appropriate notice of change of solicitors.His rights are not gone but he has to do it in a separate action. Then he says:
2. It can be done by one of he plaintiffs being removed as plaintiff in this case and proceeding on a separate action."
"The simplest way of accomplishing that, and so on ..."At the bottom, he says:
"The third possible means of remedying the defect would be for the plaintiffs to apply for leave to be separately represented in this action. I do not invite such an application on the basis of what was said on the hearing. It seems doubtful that adequate grounds exist. That was not the issue before me, etc."So, my Lords, what I am saying in summary on this motion is purely and simply that for an action that has gone on to trial for four (4) years, six (6) weeks in the Court of Appeal, now coming before this Court with competent counsel representing all those plaintiffs throughout that case and to have one of those plaintiffs decide that they want to take a totally inconsistent position in this Court at this time, is simply not warranted. I submit that their motion should be struck.
LAMER C.J.: Thank you. I assume that we will not be hearing the other parties on this? Does Mr. Rush intend to?
MR. STUART RUSH: [Microphone not on]
LAMER C.J.: We will see.
MR. STUART RUSH: My Lords, I have a few brief comments that I would like to address to this motion.
LAMER C.J.: Yes. Proceed.
MR. STUART RUSH: It is our position, assuming that the constitutional question notice filed by Xsgogimlahxa reflects the case which will be brought, that the case which Xsgogimlahxa seeks to bring is fundamentally different from the one that the hereditary Chiefs brought at trial and on appeal and I need to only refer your Lordships to exhibit A of Mr. Bell's affidavit of September 6 and to the points in issue that were raised by the Delgamuukw appellants on this appeal and on which leave to appeal was granted. I say as well that the case that is reflected in the constitutional question that is posed by Xsgogimlahxa is not the appellants' case. It is a different case which we say should not be part of this appeal and it may well be the subject of another case for another appeal based on other facts at another time, but my Lords it is not this case. I submit further that this action was brought by the hereditary Chiefs collectively for themselves, their House members and all of the members of the Gitksan and Wet'suweten peoples. In doing so, they were and are seeking rights of title and self-government as nations. Their action is also in respect of their territory as a whole. In denying the jurisdiction of the Canadian courts to adjudicate on these issues, the applicant Xsgogimlahxa in his application to state a constitutional questions raises issues which are at odds completely with the appellants' issues and has nothing to do with the appellants' case. We say that he wishes to proceed with the case in the Canadian courts on the basis that there is no jurisdiction and a Canadian court will hear that, then the applicant should sever off from this appeal and start his own action or proceed on the basis of his own proceedings.
Those are our submissions, my Lords.
LAMER C.J.: Mr. Frankel, do you have anything?
MR. DAVID FRANKEL, Q.C.: My Lords, the Attorney General of Canada supports the motion that I have nothing to usefully add to the submissions of my learned friends.
LAMER C.J.: Thank you, Mr. Frankel. Now, we will hear from you, Mr. Clark.
MR. BRUCE CLARK: Xsgogimlahxa's submission is that leave is not needed, but if needed is hereby requested. The point of the Convention to which your Lordships have been referred is to avoid confusion, to avoid the creation of the situation where you have two (2) plaintiffs talking on the same point saying different things. That is a good rule because in general it advances the interests of justice. It is not a good rule in these circumstances because if applied here manifestly would undermine the interests of justice. In factual terms, there is no overlap in the issues and for this reason we do not have the counterpart situation to that portrayed in the precedents cited. That is to say, as all parties have so far indicated, this is a completely separate issue so we do not expect to have different versions on the same point.
As far as cutting the others off as it were, that is simply a false premise. Once the jurisdiction issue is clarified, two (2) results will have been obtained, either (a) jurisdiction of the non-native court system will have been established in which case the balance of the appeals will proceed as they are now on track to proceed. If, however, my client's point of law is vindicated. Then the remaining appellants will be put in the position of having an option. They may choose at that time to discuss and to consider among themselves the following scenario. They wanted and did assert jurisdiction over land. From the affidavit material filed, they were not however advised and fully informed that they had the right in addition in view of the Mohegan precedent to contest the jurisdiction of the non-native court system at the same time. That is in my submission crucial because, if the province of British Columbia and the dominion of Canada have legislative jurisdiction to provide for courts relative to arguably yet unceded hunting grounds, by the same token they also have jurisdiction to provide for land legislation. To grant one is to grant the other.
In this perspective, the day the writ was issued in the Delgamuukw case returning to the jurisdiction of the court, it is lost by the plaintiffs by conceding the jurisdiction of the court. By necessary implication, they conceded the jurisdiction of the legislatures that created those courts, which is to say the Indian apparent assertion of native sovereignty was scuttled by the legal profession in the presentation to the court system.
LAMER C.J.: Maybe the fact that they have been unsuccessful might have something to do with the change of mind as to who has jurisdiction. We are facing a situation, as you readily admit, that by going to a court one brings oneself within the jurisdiction of that court.
How can you ask a court for something -- I realize you were not attorney at record but we take the record with the attorneys that were there and with the people that were there and they brought themselves within the jurisdiction of the court and sought relief from that court, twice went to appeal, sought relief from the Court of Appeal and now before this Court says "By the way, we should not have gone to court".
MR. BRUCE CLARK: Your point, my Lord, would be well taken if native plaintiffs had been advised by their legal counsel.
LAMER C.J.: I do not know what they were advised. We do not know that.
MR. BRUCE CLARK: As a matter of fact, I do because I was one of the counsel who were advising them at the time and there was a dispute between counsel whether to go for court jurisdiction or just court land.
LAMER C.J.: Are you not late in the day for blowing the whistle?
MR. BRUCE CLARK: No, not at all, because jurisdiction which is inherently illegal cannot be acquired by waiver. Secondly, it particularly cannot be acquired by waive where we have as we do here an affidavit filed by counsel for the remaining plaintiffs which does not say the clients were advised that they could have disputed the jurisdiction of the court but chose not to. If that had been in the affidavit, then I would think that your Lordship's point would have made a significant step forward. But absent that, on the face of the affidavit, coupled with my client's affidavit, we have what appears to be a fraud upon a minority and that minority now wants to apprehend that fraud, and in arguing for the apprehension of that fraud argues that the entire system of justice and rule of law is placed on trial in consequence. The reason is, if my client's point of law is well taken, the assumption of jurisdiction in the past and today and tomorrow prima facie constitutes treason and fraud and arguably complicity in the crime of genocide.
LAMER C.J.: Mr. Clark, we are on a motion to strike out and you are into the merits of stating a constitutional question. I can follow you. If you had decided to initiate or if you decide tomorrow morning to initiate in the British Columbia Supreme Court an action for declaratory judgment saying that the British Columbia courts have no jurisdiction, that is a different matter and you could be arguing to the judge that, well, this issue has never been tried and I want a declaratory, but we are talking about doing this within the four (4) corners of this appeal. And what is put against you is that, while you might have a good point to argue in the British Columbia Court of Appeal, this is not the place to start the thing and this certainly is not the way of doing it along with them. In other words, they do not want to be in the same courtroom with you because you are saying they should not be in the courtroom.
MR. BRUCE CLARK: On July 6, your Lordship refused leave to appeal on the same point of law pursuant to s. 40(1) of the Supreme Court Act, the sole test for which is whether the issue is of importance. You, my Lord, have already decided this issue is not of sufficient importance to occupy the Court's time. For you now to say that it is realistically open to Xsgogimlahxa to commence a separate action and to work his way through the court system, as was on those eleven (11) other applications is blatant chicaneries.
LAMER C.J.: I must remind you, Mr. Clark, that I do not intend to tolerate such language on the part of any counsel including yourself.
MR. BRUCE CLARK: Nor, sir, do I intend to tolerate treason, fraud and complicity in genocide against our Constitution and against the aboriginal peoples of this country.
LAMER C.J.: Now proceed. Is that all you have to say on the motion to strike?
MR. BRUCE CLARK: No. I have been interrupted and I will resume in my notes from the point at which the interruption occurred, if I may.
LAMER C.J.: Proceed, proceed.
MR. BRUCE CLARK: If my client's point ultimately is vindicated, this Court does not have jurisdiction. The remaining plaintiffs will then have an informed option. That informed option will permit them either to say "We will take that route". That is the probability because at that point their native sovereignty would be -- they would have not only land jurisdiction but they would have court jurisdiction. They would have the greatest of all possible forms of native sovereignty. On the other hand, they may be advised by their lawyers to waive the right to dispute the court jurisdiction, essentially to treat the non-native tribunals as a form of arbitration and in an informed fashion attorn to the jurisdiction of this tribunal. That would be their choice at that time but it will be an informed choice. And as members of the legal profession, the duty is to make sure that the client is put in the position of making that type of choice.
Those are my submissions, my Lord. Thank you.
LAMER C.J.: Reply, Mr. Williams.
MR. BRYAN WILLIAMS Q.C.: In respect of the passage that I think now may become relevant is in the judgment on page 3 of Mr. Justice Esson, as he then was. Now in the paragraph before the one I read at page 497, he says this:
"I agree that to proceed in this irregular way may frustrate orderly procedure by creating an awkward element of uncertainty as to the manner in which the various steps in the action are to be handled. That alone is a species of prejudice to the defendant and whereas here the defendants apply in a timely way to require the irregularity to be remedied, the plaintiffs' assurance that there will be no prejudice is not sufficient ground for refusing the relief. The defendants are entitled to be relieved of whatever risk of prejudice there may be. Furthermore the court has its own interests and orderly procedure."My point is simply that it is absolutely obvious that in this case the defendants would be prejudiced from the nature of the proceedings brought. But even if we were not, we have a right to say we may well be.
The second point is, if you read Mr. Rush' affidavits that were filed, my Lords, you will see that we are dealing with nothing that could possibly be brought together with the application, irrespective of what Mr. Rush said or did not say in the opening that was presented to the Supreme Court of British Columbia. It is so completely different from this that there is no it can be reconciled.
I say first of all that the Chief Xsgogimlaxha has been a plaintiff all along throughout these proceedings. That does not answer my friend's question of "Yes, but if he had been properly informed and so on". Mr. Clark said an interesting thing. He said that he was there and he did advise them but that he was presumably overruled and the instructions that came from the fifty one (51) clients went the other way. So I do not think he can now say that this is a matter that can be brought at this juncture.
LAMER C.J.: Thank you. We will reserve on this motion.
MR. BRUCE CLARK: I must agree with your Lordship that to some extent I perhaps anticipated my comments on this motion so I will just reiterate the point of law is whether assumption of jurisdiction -
LAMER C.J.: There is no doubt that it is a constitutional issue. If it is a constitutional issue that we decide to entertain, then it flows from that that we should state a constitutional question to send notice outside so that they intervene but therefore this takes us to the fundamental question, "Do we want to entertain, and why should we, in your view entertain a constitutional question of nature when that question was not raised below?" Now, I know you worked there below as counsel of record but the fact of the matter is that we do not have the benefit of the Supreme Court of British Columbia and the Court of Appeal. Earlier on this morning at 10:00 a.m., in a case from Quebec, I refused to state a constitutional question because it was being raised before us for the first time.
MR. BRUCE CLARK: What the courts below said in all of the eleven (11) cases that this Court recently on July 6 refused leave on was basically that, regardless of the truth of what I was alleging on behalf of my clients, the issue itself was of such momentous concern, was of such momentous importance to Canada that nobody but the highest Court in the land was going to touch it. On July 6 it gets to the highest Court in the land and that Court says the issue of no importance and leave to appeal is denied. The reason this Court must address the issue is because the rule of law hangs in the balance. A philosopher, David Hume, correctly in my view identified the cornerstone perception of the rule of law as being that it is in human nature to prefer the contiguous to the remote, to prefer self-interest to integrity when the two (2) conflict. And for this reason, Dr. Hume offered the opinion that the cornerstone of the rule of law and indeed society and civilization was the existence of independent and impartial third party tribunals. This is merely to repeat the fundamental Roman law precept that no person can be suitor and judge in the same cause, which is precisely and eloquently what this Court held in the Matsqui case. The only different between this case and the Matsqui case really is that this Court is being asked to sit in judgment of the possibility that it might be biased, structurally biased. What I am saying is I do not know of another time in the legal history of the world that any national court the highest court in any country, has been put in that position. It is my respectful submission that, if and when this Court accepts in principle that justice must be seen to be done, in order to be seen to be done, the issue must be given to an independent and impartial outsider, that the rule of law for all the world will have taken a significant evolutionary step forward.
I wish to argue that the crime of genocide never occurs unless the court system of the country in which it is occurring is complicitous. Right now, the world more than any other single advance needs a break on the crime of genocide and the crime of ecocide and I am suggesting that this Court can light a candle for all humanity to follow. Alternatively, it can engage in chicaneries and not address the point. It can soar or it can plummet. There is no in between.
In terms of remedies, what I am specifically asking is that this Court, on the basis of the Mohegan case, recognize that there is an existing independent and impartial third party tribunal which can address both sides of the story without seeming to be interested in the outcome. If my client's legal point is vindicated before such a tribunal, by necessary implication every judge of this Court will be guilty of misprision of treason and fraud and complicity in genocide. In that sense, I am asking you, each of you, to be something greater than what the philosopher David Hume estimated was within the human capacity. I am asking you to find it within yourself to make an evolutionary step forward for the rule of law to hand this to the other tribunal and in the meantime -
S0PINKA J.: Who is that tribunal?
MR. BRUCE CLARK: It is the tribunal constituted by Queen Anne in 1704 in response to the petition brought by the Mohegan Indians in very similar circumstances.
LAMER C.J.: If that tribunal has jurisdiction, why do you not just go to that tribunal?
MR. BRUCE CLARK: I have gone.
LAMER C.J.: Do we have jurisdiction to tell them to take the case?
MR. BRUCE CLARK: I think you do.
LAMER C.J.: How do we get that? I mean, if we have no jurisdiction over the matter, how do we find jurisdiction to tell anyone else that they are the ones that have to hear the case?
MR. BRUCE CLARK: Your jurisdiction as guardians of the sacred trust of civilization.
LAMER C.J.: Oh my God. I did not swear to that. I just swore to be a judge and try to do my best according to the rule of law.
MR. BRUCE CLARK: It fell upon you, whether or not you realized it. That is the duty under which you labour.
LAMER C.J.: I must say, Mr. Clark. that in my twenty six (26) years as a judge I have never heard anything so preposterous and presented in such an unkind way. To call the judges of the Supreme Court of Canada and the nine hundred and seventy five (975) High Court judges of Canada accomplices to genocide is something preposterous. I do not accept that and I think you are a disgrace to the bar. The point is you have my opinion and you are lucky I am just proceeding to opinions at this stage.
I will hear you on the motion. Is that all you have to say on the constitutional question?
MR. BRUCE CLARK: No. I would like you to reflect upon your words.
LAMER C.J.: I am asking you to address the motion and move on with the proceeding here. Address the motion. You want us to state a constitutional question. We put a question to you. Why would you not go to the court you think has jurisdiction? You answered that.
MR. BRUCE CLARK: No. I have not completed my answer to that. May I do that now?
LAMER C.J.: Yes, please do.
MR. BRUCE CLARK: My clients have gone to that court in the following fashion. A petition dated January 3, 1996, which is appended to the material filed in support of the motion, has been filed with Queen Elizabeth asking her to carry out an administrative duty of staffing the court which for some years has been moribund. Since it was created as a permanent standing committee, however, it nevertheless exists as an institution. My client's submission to the Queen has been that she is not being asked to exercise a legislative prerogative power but merely to perform an administrative duty that is to staff a court, the judges of which have passed away. That is either a legal right or arguably a legal right possessed by my clients.
There are political dimensions to this question that are complications. There is a Convention that the Queen will not act concerning Canadian affairs except upon the advice of her Canadian Privy Councilors relayed by the Governor General. If my client's legal point is valid, the treason, the fraud and the complicity in genocide are being perpetrated by the legal establishment in Canada which includes not only this Court but the Governor General's office and Her Majesty's Canadian Privy Councilors. Therefore, the Convention is patently feeding the injustice if the point is well taken. Now the Queen has not said no but the matter hangs in abeyance. She is getting arguments from both sides. One, she is under a legal duty and must act. The other, which is a purely legal submission, is you have a diplomatic investment in Canada. Even if these people are criminals, they are powerful criminals and it could hurt England in its trade relationships with Canada. So we have a classic situation of the truth versus political opportunism. In theory, the function of the rule of law and therefore of this Court above all courts is to get at the truth, the whole truth and nothing but the truth regardless of political opportunism, regardless of personal offense. This Court is to be above such petty considerations.
The remedy specifically therefore is not to ask this Court to address the constitutional question as such but to ask this Court to address the law which indicates that this case ought in justice to refer it to an independent and impartial third party tribunal, and in the meantime to make sure that more lives are not lost on the basis of the arguably erroneous assumption that this Court and hence the Royal Canadian Mounted Police or other police forces have jurisdiction. Indian people allegedly are murdered by police who in the even may turn out to have been there fraudulently, treasonably and genocidally, not legally.
In the material that is filed, at page 13 of the main motion to state the constitutional question, there must be an amendment recorded at this juncture. Paragraph 20 at page 13 reads as follows:
"Each and every of the petitioners (particularized in Schedule 'A') attests that in consequence of the aforesaid (treasonable and fraudulent) usurpation by domestic Crown Courts in relation to Hunting Grounds, the members of the tribal system to which he or she belongs have been and are being subjected to 'serious mental harm' within the meaning of article II(b) of the above mentioned Convention and, correspondingly, to prejudiced rates of mortality."I wish to have that amended so that after the word "mortality", the period is replaced by a comma and the following is added "and, furthermore, to 'killing' within the meaning of article 2(a) of the said Convention".
Those are my submissions, my Lords.
MR. BRUCE CLARK: If this Court is persuaded that there is a jurisdictional issue, then the submission is that pending the resolution of that issue in accordance with the rule of law before an independent and impartial tribunal, reasonable steps ought to be taken to minimize the risk of injury or death.
LAMER C.J.: Today we are not here to decide whether there is jurisdictional issue to the merits. It is to decide if you can raise the jurisdictional issue in the manner you have. Even though we are a composition of the Court, we are not hearing the case. So that if I understand the situation it is that this injunction concerns what is occurring currently in British Columbia as between persons and the Royal Canadian Mounted Police who are not parties to the action before this Court, and I am having difficulty understanding how sitting in a case in this Court, we can sort of reach out and start issuing injunctions as between parties who are not parties to this case or orders that have nothing to do in order to protect the rights of the parties in this case. We do not have general jurisdiction to roam around the land and issue injunctions of this matter. How do you bring your clients within the four (4) walls of this courtroom without proceeding through the Supreme Court of British Columbia, the Court of Appeal and then to us?
MR. BRUCE CLARK: Well, prima facie, you do not have the general jurisdiction to go into the Indian territories prior to a treaty either. My client's point of law, which at this point must be conceded at least as being at least arguable, is that in virtue of the invasion of the Indian territories by the court system which this particular panel penultimately represents and the police, this Court has introduced from coast to coast in Canada a murderous situation. It has introduced a situation where every day, police whose presence is prima facie treasonable and fraudulent and arguably genocidal, stays Indian people who prima facie are entitled not to be molested or disturbed, takes those Indian people armed with weapons and on occasion kill them. Now wherever that happens in Canada, it ought to be of concern to this Court if this Court admits that it is arguable that this is an endemic problem.
LAMER C.J.: The fact that we might be concerned about something does not grant us jurisdiction. I am oftentimes concerned about what is happening in the other house but I certainly do not have any jurisdiction to tell them to do it or not to do it. The only point I am putting to you and I think my colleagues agree with me on this is that we are not a court of original jurisdiction such as the Supreme Court of British Columbia. We can only sit in appeal of injunctions.
MR. BRUCE CLARK: Precisely. But what you can do perfectly within your power --
LAMER C.J.: You show me the court to whom you ask for an injunction and it was turned down and that court being the highest court of last resort in the province. Because that is the threshold for our jurisdiction.
MR. BRUCE CLARK: On July 5, there were eleven (11) different applications that came before you and other panelists here in which ad nauseam you had precisely that. What that material showed you was that again and again and again I went before lower court judges and without exception they did one (1) of three (3) things. One, the judge would say "That is so scandalous, I am not going to hear anything more about it. That is the end of it." Or the judge would say, if it was in British Columbia, "That has already been decided by the Delgamuukw case."
SOPINKA J.: Are those applications for an injunction you are talking about?
MR. BRUCE CLARK: Yes, some of them were. Some of them were. Some of them were for the court not to proceed because it did not have jurisdiction. Some where there were counter applications for injunctions. There were a whole different set of factual circumstances.
S0PINKA J.: And did you appeal those?
MR. BRUCE CLARK: Yes, all of them. That is the set of cases.
S0PINKA J.: This is not an appeal. This is an application for an interim injunction in first instance. You do not purport to be appealing from anything.
MR. BRUCE CLARK: That is absolutely right but how is that relevant to the point here?
S0PINKA J.: Because we are not a court of original jurisdiction. You cannot get an injunction here. You can get a stay of proceedings in connection if it is connected to the proceeding but, as the Chief Justice pointed out to you, this interim injunction with respect to some group that is demonstrating in British Columbia is not connected to this case. I know that in your mind everything is connected but it is not connected in the sense in which we understand it and since you are applying to this Court for relief, this Court can only grant if it follows the law. You have to follow the law.
MR. BRUCE CLARK: I do not need that kind of lecture, my Lord. You are misrepresenting my position. Let me correct the misunderstanding. Firstly, I must finish with the Chief Justice's point and then I will get to your point, my Lord.
There is no need to make an injunction from coast to coast. If you make an injunction to one (1) coordinate on the map, to one square inch, the point will be well taken. The Attorneys General across the country will see that this Court has said the jurisdictional issue is going to be addressed. In the meantime, any sensible human being will say "Let us back off the hostilities until we find out where the jurisdiction really rests". So this Court, without making the injunction from coast to coast, can give guidance from coast to coast.
Now, as to whether or not this Court is a court of original jurisdiction, of course it is not. But this Court is the highest court in the land and given the possibility that this Court and the whole system may be engaged in treason, fraud and genocide, for any judge to suggest that the highest court of the land is powerless to grant an injunction which can influence events and preclude injury and death to Canadian citizens is preposterous.
Those are my submissions.
LAMER C.J.: Well, you have not been very helpful.
The Court is adjourned to the opening of the term.
-- Upon adjourning at 11:53 a.m.
Affidavits by Margaret Clark in support of Sep. 12 action
Interview with Dr. Bruce Clark on Supreme Court action