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
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.