Case Name: R. v. Morris. Between Regina, and Sandy Morris Jr., John Sylvester a.k.a. Wilfred John Henry, Bonnie George, Ben Sam, Patrick John Edwards

Transcription

1 Page 1 Case Name: R. v. Morris Between Regina, and Sandy Morris Jr., John Sylvester a.k.a. Wilfred John Henry, Bonnie George, Ben Sam, Patrick John Edwards [2010] B.C.J. No BCPC 270 File No Registry: Duncan British Columbia Provincial Court Duncan, British Columbia B.D. MacKenzie Prov. Ct. J. Heard: February 7-10, 17, 28, March 17, April 19, November 1-4, 7, 8, December 6, 20, 23, 2005; January 6, 19, February 1, 2006; February 14, 19-22, 26-28, March 1, 5, Apr 2, 4, December 3-6, 2007; January 21-24, February 13, 14, March 31, May 27, September 29, 30, October 1, December 30, 2008; January 6-9, June 25, July 13, October 14, 2009; February 8-12, and March 22-26, Judgment: November 12, (337 paras.) Counsel: Counsel for the Crown: F. Thompson & J. Blackman. Counsel for the accused Morris, Sylvester, George & Sam: R. Morahan. Counsel for the accused Edwards: S. Sheets.

2 Page 2 REASONS FOR JUDGMENT Background 1 Facts 1 Treaty Right 20 Framework 20 Alleged Treaty Right 24 Existence of a Treaty Right 28 Direct Descendant of a Treaty Signatory: Morris Jr. George and Sam Direct Descendant of a Treaty Signatory: Genealogy of Edwards Applicability of Treaty Right 41 Applicability of Treaty Right: Kinship Reciprocity Defendants' Position Crown's Position

3 Page 3 Analysis Evidence of Kinship Ties Kinship Reciprocity in the Douglas Treaties Principles of Treaty Interpretation Kinship Reciprocity as a Treaty Right Applicability of Treaty Right: A Species Specific Right Defendants' Position Crown's Position Analysis Internal Limit to a Treaty Right 103 Internal Limit: Conservation Defendants' Position Crown's Position Legal Principles Analysis: Is Conservation an Internal Limit? Analysis: Is the Scope of the Treaty Limited by Conservation? Traditional Practices: Sustainability

4 Page 4 Do the Regulations Infringe the Treaty Right? Was the Hunt within the Scope of the Treaty Right? Limitation on the Scope Treaty: Traditional Permissions and Protocols Prima Facie Infringement of a Treaty Right 203 Legal Principles Parties' Positions Analysis Is the Limitation Unreasonable? Undue Hardship and Preferred Means Aboriginal Right 225 Framework 225 Alleged Aboriginal Right 226 Existence of an Aboriginal Right 227 Legal Principles Defendants' Position

5 Page 5 Crown's Position Analysis Kinship Reciprocity as a Right Cowichan Right to Hunt at Cowichan Lake Internal Limit on an Aboriginal Right 279 Prima Facie Infringement of an Aboriginal Right 285 A Species Specific Right Justification 289 Legal Principles Analysis: Valid Legislative Objective Analysis: Consistency of Regulation with Crown Fiduciary Duty Priority to Aboriginal Rights As Little Infringement as Possible Consultation

6 Page 6 Is the Infringement Justified? Sheltering 309 The Elements of Sheltering 314 Analysis 323 Sheltering as a Treaty Right Sheltering as an Aboriginal Right Summary of Findings 332 B.D. MacKENZIE PROV. CT. J.:-- Background 1 In the winter of 2001/2002, five Aboriginal persons hunted elk at or near Cowichan Lake in British Columbia. Three of the Aboriginal defendants were from urban locations in the greater Victoria area. Mr. Morris Jr. is a member of the Tsartlip Band. He is recognized as an important hunter by his people. His common-law spouse, Bonnie George, is a member of the Songhees Band as is Mr. Sam. The remaining Aboriginal defendant, Mr. Edwards, is a member of the Cowichan Band. The fifth defendant, Mr. Sylvester, another well-known hunter from the Cowichan Band, passed away during the course of this lengthy trial. 2 The present day Cowichan Band has traditionally resided in several separate villages near the mouth of the Cowichan River and near Quamichan Lake and Somenos, a short distance up the river. The hunts took place in a relatively remote area although a major two-lane paved highway runs north of Cowichan Lake, through the Town of Lake Cowichan and then along the southern shore. After about 20 kilometres, this road joins the main north - south route on Vancouver Island. 3 There has been a prohibition on hunting elk at Cowichan Lake since At that time, there

7 Page 7 were very few elk and the population was considered extremely fragile. Since then, the elk have recovered somewhat, especially one herd centered around Shaw Creek. This replenishing has occurred notwithstanding sporadic unsanctioned hunts over the years during which large numbers of elk were shot. 4 The provincial government has designated Roosevelt elk as "S-3": the animal is vulnerable to extirpation or extinction due to its restricted range with some local declines, habitat degradation, predation and poaching. In particular, the Fish and Wildlife Branch has concluded that the local elk population in the Cowichan Lake area is susceptible to a significant reduction in numbers leading to an unsustainable level, including potential extinguishment, without prohibitions and/or sanctions. 5 In recent years, members of the defendants' bands have disputed the necessity for concerns about the viability of Roosevelt elk at Cowichan Lake. They say there are ample elk to allow unregulated hunting by Aboriginal persons. As a result, there has been no agreement between the government and "interested" Aboriginal parties as to what an appropriate allocation of elk would be if the area was opened to Aboriginal hunting or if there was a limited hunt. Facts 6 At the outset, it is helpful to briefly describe how the accused found themselves hunting elk at Cowichan Lake on the dates in question. 7 Ms. Ester Edgar, the Crown's first witness and Morris Jr.'s aunt, testified on February 7, She is a member of the Ditidaht (or Nitinat) First Nation. She knew all of the accused and was with them on two hunts. Notwithstanding some inconsistencies, I have accepted her evidence, especially as crucial parts of it were confirmed or corroborated by other uncontradicted evidence. 8 In January 2002, Ms. Edgar was staying at the longhouse on the Songhees First Nation's land in Victoria "babysitting" a dancer. Morris Jr. approached her and asked her "what it would take for him to get an elk for the longhouse". She testified in cross-examination that Morris Jr. asked her, "What it would take for me - for us - for me to get permission to get an elk?" 9 She called her brother, George Jack Thompson, who at the time was Chief of the Ditidaht First Nation, which traditionally has had a presence at Cowichan Lake near their main territory on the west coast. She asked if she could get an elk because "Rose and Amy are in the Big House and we need some meat for the table." She testified that the Chief told her "go ahead, but just get one." 10 After this telephone conversation, Morris Jr. asked her, "Can we go?" She testified that she held up one finger and said, "Yeah, we can go and get one." 11 They drove to the lake at around 11:00 p.m. In describing the hunt in which two elk and a deer were shot, she said "a big light" was used. After the two elk were shot, she said to Morris Jr., "Whoa, you sure don't know how to count do you."

8 Page 8 12 Approximately a week later, the group went hunting again. Once in the truck, she asked Morris Jr. where they were going. She testified he said, "We're going back to your territory." They located a large herd of elk near the lake shore. The "big light" was used and two elk were shot. 13 Other hunts took place during the same time frame although not all defendants were present each time. 14 Morris Jr. confirmed that the hunts took place at night. He told conservation officer Stephen that they used a high-powered light, a rifle he got from an uncle "along with night-vision goggles". Morris Jr. said to Officer Stephen that they "got a few elk," and that they were taken "in Nitinat traditional territory." The defendants advised the conservation officers that the meat was to be used for food at the Big House during various ceremonies and functions. On one occasion, a significant amount of elk meat was left behind in the bush. Morris Jr. advised one of the conservation officers that the reason meat was left was because "the truck could not handle anymore". Mr. Edwards told conservation officer Horncastle that it was raining and Morris Jr. and Sylvester "were tired and I said 'why shoot it if you're not going to take it.'" 15 The information sworn in November 2003 contained 47 counts. On February 1, 2006, at the conclusion of the trial on its merits, I found the evidence led by the Crown, which included statements from the defendants, established beyond a reasonable doubt that these defendants were responsible for killing eight elk between January and February 2002 as charged in 12 of the counts: R. v. Morris (1 February 2006), Duncan (B.C. Prov. Ct.). The counts the Crown proved beyond a reasonable doubt were for the hunting and killing of Roosevelt elk "at a time not within an open season" and the discharging of firearms in a no shooting area contrary to the Wildlife Act, R.S.B.C. 1996, c The Crown stayed several charges after the Supreme Court of Canada, in R. v. Morris, 2006 SCC 59, [2006] 2 S.C.R. 915 [Morris], accepted that night hunting with high-powered illumination was a traditional Aboriginal method of hunting. The remaining counts were dismissed when I found the Crown had not proven these charges beyond a reasonable doubt. 16 Three of the elk were shot by the deceased Mr. Sylvester. Four of the eight elk were cows, two of which were pregnant, and one was a calf. According to conservation officers who observed remains in various areas at or near the lake, approximately 21 elk were killed on the north shore of Cowichan Lake in the winter of 2001/2002. A small number of elk were also killed on the south shore during that winter. It is estimated that approximately 14 of these elk were female. This of course caused grave concerns about the sustainability of the elk populations in that area. 17 At the conclusion of the first stage of the trial, the defendants advised that they would be advancing an Aboriginal defence to those charges that the Crown had proven beyond a reasonable doubt based on s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act (U.K.), 1982, c. 11, which guarantees Aboriginal and treaty rights. They say that they have a treaty right and, in the alternative, an Aboriginal right to hunt at Cowichan Lake for food, social and ceremonial purposes. The Crown argues the defendants have failed to prove on a balance of probabilities either

9 Page 9 a treaty right pursuant to the Douglas Treaties or an Aboriginal right to hunt elk at Cowichan Lake because the area was not part of their traditional hunting territory prior to contact with Europeans or when the Douglas Treaty was signed. 18 The defence called several Aboriginal deponents and two experts. None of the defendants testified. The Crown called two experts and numerous conservation officers and wildlife management witnesses. The only expert that testified as to conservation concerns was a Crown witness. 19 With this very brief background, I will first deal with the treaty right claim and then the Aboriginal right defence. Irrespective of whether the defence prevails on the treaty argument, it is appropriate that I deal with all of the arguments advanced by both the defendants and Crown although many of the same issues will arise with respect to Aboriginal rights. Treaty Right Framework 20 In order to determine whether the impugned provisions of the Wildlife Act, impair a treaty right, a two-step process is required. The first step involves establishing the existence of a treaty right and characterizing its scope. It is well settled that the onus lies on the defendants to prove both the existence and scope of a treaty right. Morris Jr., George and Sam claim a treaty right to hunt. More specifically, they say this right allows them to hunt elk at Cowichan Lake pursuant to the practice of bilateral kinship reciprocity amongst Coast Salish bands. 21 Edwards' claim is slightly different given his different status as a member of the Cowichan Band. However, he also claims a treaty right as a direct descendant of the signatories to the Nanaimo Treaty. 22 If the defendants are able to prove a treaty right on the balance of probabilities, the analysis will turn to the second step, whether there are any internal limits on that right, similar to the dangerous hunting internal limit acknowledged by the Supreme Court of Canada in Morris. The Crown has the burden of proving that an internal limit has been triggered. If there is an internal limit, then the Wildlife Act would not be affected and there would be no need to consider whether the legislation prima facie infringes a treaty right. Conversely, if there is no internal limit, I must consider whether there has been a meaningful diminution of a treaty right or whether the provincial legislation only interferes insignificantly with the treaty right such that the legislation can be incorporated by s. 88 of the Indian Act, R.S.C. 1985, c. I-5, or applied ex proprio vigore: Morris; R. v. Côté, [1996] 3 S.C.R. 139, [1996] 4 C.N.L.R. 26 [Côté cited to S.C.R.]; R. v. Nikal, [1996] 1 S.C.R. 1013, [1996] 3 C.N.L.R. 178 [Nikal cited to S.C.R.]. 23 If the Wildlife Act constitutes a prima facie infringement of a treaty right, the s. 88 treaty exception is triggered and, being provincial legislation, it is constitutionally inapplicable to the

10 Page 10 Aboriginal defendants. Based on the decision of the Supreme Court of Canada in Morris, if the defendants do indeed establish a prima facie infringement of a treaty right, the Crown would not be able to rely on justification for that infringement. Alleged Treaty Right 24 I now turn to whether the defendants have established a treaty right to hunt where these particular hunts took place. 25 The foundation for the treaty right claimed by the defendants is the Douglas Treaty, signed by Sir James Douglas and several Aboriginal signatories at Victoria in The relevant part reads:... it is understood however that the land itself, with these small exceptions, becomes the entire property of the white people forever; it is also understood that we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly. 26 In respect of kinship reciprocity, both the defence expert, Ms. Vanden Berg, and the Crown expert, Mr. Dewhirst, acknowledged that Dr. Wayne Suttles was the preeminent anthropologist studying Coast Salish culture. Dr. Suttles, in a report created for the trial of R. v. Seward (1996), [1997] 1 C.N.L.R. 139 (B.C. Prov. Ct.), entitled "Penelekuts Polity, Hunting, and Territory", outlined the advantages of kinship reciprocity or "inter-village marriage". The Penelakut is another Coast Salish band. At page 4 of his report, Dr. Suttles wrote:... the children of the marriage inherited potential membership in both parents' villages and, while living in one village, the right to visit and participate in the harvesting of resources in the other.... Marriage ties thus provided the basis for... the exchange of access of resources between villages... [Emphasis added.] 27 Based on Dr. Suttles' work and other historical literature, Mr. Dewhirst concludes kinship reciprocity does not give an automatic or unfettered right to another village's resources; it only gives potential access. Moreover, it is his opinion that kinship reciprocity requires a party to comply with certain protocols before accessing resources on another First Nation's territory. Ms. Vanden Berg's opinion differs. Existence of a Treaty Right Direct Descendant of a Treaty Signatory: Morris Jr., George and Sam 28 The Crown concedes that Morris Jr., George and Sam are beneficiaries of the Douglas Treaties insofar as they are members of a First Nations group which is descended from an original

11 Page 11 signatory. Direct Descendant of a Treaty Signatory: Genealogy of Edwards 29 Edwards argues, much like the other defendants, that he has a treaty right to hunt at Cowichan Lake based on his being a direct descendent of the signatories to the Nanaimo Treaty and kinship reciprocity. The Nanaimo treaty is part of the Douglas Treaties and contains the same wording as noted above. 30 While the Crown concedes that Edwards is a member of the Cowichan Tribes, it makes no concession that he is a descendant of the Nanaimo Treaty signatories or that the Cowichan Tribes are beneficiaries of the Nanaimo Treaty. 31 The onus is on Edwards to prove on a balance of probabilities that he is a direct descendant of the signatories and, thus, has treaty rights. Edwards relied on the evidence of Ms. Vanden Berg. 32 The Crown contests the accuracy and reliability of Ms. Vanden Berg's findings. It called as an expert Mr. Dewhirst, a cultural anthropologist who has extensive experience with respect to Aboriginal issues and has done research for the provincial government as well as First Nations. Mr. Dewhirst criticized Ms. Vanden Berg's methodology and source material, in particular her reliance on sources that she had never seen. 33 In her evidence, Ms. Vanden Berg referred to the death record of Edwards' maternal grandfather, Charles John Seward, which was introduced as an exhibit. Ms. Vanden Berg testified that Charles John Seward's father was Robert Seward and that the Court should assume that Robert Seward descended from Squoniston, an original signatory. In support of this position, Ms. Vanden Berg stated that "the Seward family is a large important family on the Nanaimo reserve...[a]nd that it is highly unlikely that they are not connected to the Nanaimo treaty." When asked how this final connection in the genealogy chart could be established, Ms. Vanden Berg stated she "would leave the connection to Ms. Lorraine Littlefield". However, Ms. Vanden Berg had no idea what source material Ms. Littlefield used to make her findings to conclude that Edwards was a direct descendent of a Nanaimo Treaty signatory. 34 Furthermore, Ms. Vanden Berg admitted that in preparing Edwards' genealogy charts, she did not source any information that would allow her to determine the accuracy and the reliability of his genealogical material. Instead, she primarily relied on information received during a phone conversation with Ms. Littlefield, testifying that Ms. Littlefield "rhymed [the information] right off the top of her head." 35 Ms. Vanden Berg also testified that she relied on information from the Hul'qumi'num Treaty Group and simply considered whatever source it used to be reliable. Again, as with Ms. Littlefield, she did not see or discuss any of the source material the group relied upon in forming its opinion.

12 Page Neither Ms. Littlefield nor a member of the Hul'qumi'num Treaty Group testified. Neither disclosed any of the information they relied upon when expressing their opinions to Ms. Vanden Berg. And, as Mr. Dewhirst noted, "we have no idea what Ms. Littlefield told Ms. Vanden Berg." 37 Ms. Vanden Berg testified that she was "90% sure" that Edwards is a direct descendent of a Nanaimo Treaty signatory. However, I am of the opinion that little weight can be given to that conclusion because she did not check any of the source material relied upon by the third parties whose information led her to reach this general conclusion. As Mr. Dewhirst noted, there is no "final link" connecting Edwards to the original Nanaimo signatory. 38 The defence relies on R. v. Simon, [1985] 2 S.C.R. 387, [1986] 1 C.N.L.R. 153 [Simon], to support its position that there is sufficient evidence to prove on a balance of probabilities that Edwards is a direct descendent. In Simon, the defendant testified that he was a registered member of the Shubenacadie - Indian Brook Band of Micmac Indians and he lived in the same area, as described in the treaty, as the original Micmac Tribe, which was a party to the treaty. 39 In the present case, Edwards did not testify. There is no evidence that he is a registered member of the Nanaimo Indian Band or that he lives or lived where the original band resided when the treaty was signed. As a result, Simon is distinguishable. 40 Therefore, I find Edwards has not proven on a balance of probabilities that he is a direct descendant from a treaty signatory or a beneficiary of a treaty right. Even if Edwards had established this, the same arguments advanced for and against the other defendants' alleged treaty rights would be applicable to Edwards' claim. It is to these arguments I now turn. Applicability of Treaty Right 41 The defence advances two arguments in support of its claim that the Douglas Treaties provide the defendants a right to hunt at Cowichan Lake. In its first argument, the defence claims a right to hunt based on kinship ties with the Cowichan. The defence claims that the Cowichan have a right to hunt at Cowichan Lake and that the Douglas Treaties allow the defendants access to the Cowichan's hunting rights through the concept of kinship reciprocity. The defence's second argument alleges a species specific treaty right to hunt elk. I will deal with these arguments in turn. Applicability of Treaty Right: Kinship Reciprocity Defendants' Position 42 The defendants argue that as direct descendants of the signatories to the 1850 and 1852 Douglas Treaties, they are entitled to hunt over "unoccupied lands". The defendants claim intermarriage between individual members of the Songhees or Tsartlip and the Cowichan, a non-signatory First Nation, gives them access to the Cowichan's resources and thereby the right to hunt outside of the Songhees and Tsartlip traditional territory. The defendants say they have

13 Page 13 established on a balance of probabilities a historical kinship relationship with the Cowichan and that Cowichan ancestors "shared" the Cowichan Lake area with the Ditidaht, a non-coast Salish Nation, at the signing of the Douglas Treaties. 43 The defendants claim kinship reciprocity is provided for by the treaty since this was a crucial element of Coast Salish society at the time of signing. Thus, they suggest it is appropriate to conclude the signatories' intention was to incorporate this feature of the culture into the Douglas Treaty. They also say that historically they were entitled to hunt at Cowichan Lake pursuant to kinship reciprocity and that therefore the signatories' intention was to include the potential to hunt there, even though they did not actually hunt at Cowichan Lake at the time of signing. Additionally, even if they were not entitled to hunt at Cowichan Lake at the time of signing, they say the potential to have the opportunity to hunt there based on future kinship relations is a part of the modern evolution of their treaty right. 44 Relying on the full phrase in the treaty, "to hunt over the unoccupied lands, and to carry on our fisheries as formerly", and the Supreme Court of Canada's finding in Morris at para. 25 that the treaty right included the "full panoply of hunting practices", the defendants argue that, in the absence of evidence to the contrary, access to a hunting area obtained through kinship reciprocity is covered by the treaty. In addition to the wording of the treaty, they also rely on Governor Douglas' report of May 16, 1850, in which he wrote: I informed the natives... that they were at liberty to hunt over the unoccupied lands, and to carry on their fisheries with the same freedom as when they were the sole occupants of the country. 45 The defendants further posit that because of kinship reciprocity, Cowichan territory should be considered part of the Songhees and Tsartlip "extended" traditional territories. They argue that simply having a family connection in any Coast Salish territory is sufficient to allow a court to conclude those lands are part of their traditional territory irrespective of whether the band had accessed them previously. The defendants say that to interpret the phrase "unoccupied lands" otherwise would be to place a "rigid formulation" or "restrictive interpretation" on the treaty right and the definition of traditional territory.the defence primarily relies on R. v. Bartleman, 12 D.L.R. (4th) 73, [1984] 3 C.N.L.R. 114 (B.C.C.A.) [Bartleman cited to D.L.R.], which decided that the territory over which a beneficiary can hunt is in excess of the specific territories described in the particular treaty. The defence submits that Bartleman stands for the proposition that, pursuant to kinship reciprocity, Coast Salish people were able to extend their territory from the actual ceded territory to other areas, such as other unoccupied lands on Vancouver Island. It also suggests that hunting territories were defined by the kinship family territories and that kinship reciprocity is a suitable method to determine whether a particular area is traditional territory even when there is no evidence of any historical presence at that location. 46 At 84 and 85 of Bartleman, Justice Lambert found:

14 Page 14 In 1852, the economy of the Saanich people was based on hunting and fishing at traditional locations throughout a large geographic area, so as to have access to resources when and where they were in the best supply. It was traditional among the Saanich people to cooperate across tribal and language divisions, sharing access to resources in one another's local territories. Rights to hunt and fish at various locations flowed from family relationships, previous residency, and reciprocal inter-tribal or inter-family arrangements. In 1852, the Saanich people hunted over the Saanich Peninsula, southern Vancouver Island as far north as Comox, the San Juan and Gulf Islands, and portions of the Lower Mainland. They went where the food was and where it could be caught. If the animals or fish moved on, so did the hunting. 47 As mentioned, the defendants concede that their ancestors did not hunt at Cowichan Lake. In fact, in their written argument, they specifically note they have only led limited evidence that members of their bands hunted deer in this general area in the 20th century. They say this recent development was necessitated by the urbanization of the Songhees and Tsartlip territory in Victoria and outlying areas. Moreover, the defendants note that treaty rights are not "frozen in time" and claim the modern evolution of the treaty right to hunt allows them to hunt in another band's traditional territory when forced to by the urbanization of their territory. 48 Additionally, the defendants argue that this kinship relationship provides them with an automatic right to hunt within Cowichan traditional territory without any restrictions or protocol requirements. Essentially, they assert that through kinship they are able to enter another First Nation's territory at will and exercise unfettered access to the resources of that other First Nation even though that nation had no involvement with treaty negotiations or the signing of the Douglas Treaties. Crown's Position 49 The Crown argues that although it concedes Morris Jr., George and Sam are beneficiaries of the Douglas Treaty, they have no treaty right to hunt elk at Cowichan Lake. As beneficiaries they can only hunt in the ceded lands or the traditional territories of the original signatories. The Crown says the defendants have not established that Cowichan Lake was part of the traditional hunting territory of the Songhees, Tsartlip or Nanaimo Bands or that those bands had any presence there when the treaty was signed. It suggests that because the defendants rely on the principle of bilateral kinship reciprocity, the Court can reasonably infer that the defendants acknowledge Cowichan Lake is not within the traditional hunting territory of the Songhees, Tsartlip and Nanaimo. 50 In respect of Bartleman, the Crown submits that the decision only establishes that if the evidence proves that at the time of signing a specific area was within the traditional hunting area of the signatory, perhaps because of inter-tribal or inter-family relationships, and that area has

15 Page 15 continued to be used as a traditional hunting area of that First Nation, it is properly considered part of the traditional territory. If the right is not tied to specific land but is based on familial ties at any given time, the right would become "free-floating" and "abstract" and, in essence, exercisable anywhere. 51 Additionally, the Crown says that the treaty does not grant rights based on kinship reciprocity: the language of the treaty is clear, there is no ambiguity in the treaty right to hunt and there is no mention of kinship reciprocity. The Crown claims the signatories to the Douglas Treaty did not contemplate or intend to incorporate kinship reciprocity as a treaty right. In particular, the Crown submits there is no evidence the signatories intended to grant a right that would allow one First Nation unfettered access to an area far outside of its traditional territory and in the territory of another Coast Salish First Nation, especially when the latter, such as the Cowichan, was not a party to the treaty or a similar treaty. The Crown submits it is illogical and inappropriate to conclude as such because the signatories could not have intended to affect the rights of a distant non-participant. 52 The Crown further suggests that such an interpretation would be problematic since it would give the defendants greater rights than the Cowichan Tribes who, at best, only have an alleged Aboriginal right to hunt at Cowichan Lake, a right which can be limited by the Crown through regulation pursuant to the principles enunciated in R. v. Sparrow, [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160 [Sparrow cited to S.C.R.]. 53 Also, while the treaty does protect hunting practices, the Crown says kinship reciprocity does not fall within this categorization. 54 Moreover, the Crown argues that treaty rights cannot be based on kinship reciprocity because a treaty right must be collective or communal. While treaty rights may be exercised by an individual member of the community, it is the community as a whole which holds the right, not an individual. 55 Finally, in response to the evidence led by the defendants specifically pertaining to elk hunting, the Crown notes that the Douglas Treaties provide a right to hunt over unoccupied lands. This is a right to hunt generally, not to hunt a specific species. Analysis 56 The defence's argument of a treaty right to hunt at Cowichan Lake pursuant to kinship reciprocity requires the defendants to establish that the geographic scope of the Douglas Treaties includes territory accessible through kinship reciprocity. If the concept of kinship reciprocity is recognized by the Douglas Treaties, it is also necessary to establish the precise nature of the rights accorded: whether treaty rights based on kinship reciprocity cover only territory that was accessible to the defendants' ancestors at the time of signing or whether they may evolve to incorporate new kinship ties. The defendants must then establish that kinship reciprocity applies in the present circumstances, based on the requisite practice of kinship reciprocity between the Tsartlip and Songhees and the Cowichan. Finally, the defendants must also establish the Cowichan's underlying

16 Page 16 right to hunt at Cowichan Lake. 57 As the defence's argument here depends entirely on the existence of kinship ties between the defendants and the Cowichan, it is necessary as a preliminary step to determine whether such ties have been established. Evidence of Kinship Ties 58 The defence led genealogy evidence in order to establish the asserted kinship relationship with members of the Cowichan Tribes. The defence expert Ms. Vanden Berg, testified on this issue. Mr. Dewhirst, the Crown's expert, acknowledged that genealogy can show potential reciprocity between First Nations people. Therefore, determining the reliability of Ms. Vanden Berg's genealogy evidence is relevant. 59 Ms. Vanden Berg testified that in preparing her genealogy charts and reaching her conclusions, she relied on oral histories provided by several Songhees and Cowichan elders as well as substantial documentation. 60 Mr. Dewhirst confirmed that interviews with Aboriginal descendants, vital statistics reports, funeral and marriage certificates, census material, unpublished material, archives, private manuscripts and diaries are all important sources of information in determining Aboriginal genealogy. He acknowledged that much of Aboriginal research is, in fact, "reconstruction" and is substantially based on interviews with children, grandchildren and great-grandchildren. He further acknowledged that this information can be very reliable if it was received directly from parents or children rather than heard second hand. 61 Nevertheless, the Crown contested the accuracy and reliability of Ms. Vanden Berg's findings. Mr. Dewhirst criticized the format of her charts because, in his opinion, all of the relevant sources should have been clearly outlined on the genealogical reports so that someone reviewing the charts could check and verify the source material. He also testified that while Ms. Vanden Berg's charts had "little notations", they contained no "narrative" to "hel[p] the reader understand the chart" by explaining how people were identified and how the sources were analyzed and used to support a particular kinship history. He testified it was unclear how particular sources confirmed material in the report. He was also concerned that the reader was left to check the sources independently of the charts for verification. 62 However, Mr. Dewhirst admitted that reciprocal relationships were widespread within Coast Salish culture. Also, throughout his testimony, he said it was "very probable" or "very likely" that all of the conclusions reached by Ms. Vanden Berg pertaining to Morris Jr., George and Sam were accurate and that the charts themselves were "quite reliable." His primary complaint was that if specific information relating to the details of the relevant sources had been noted, he could have confirmed their accuracy without having to go to the particular source. Mr. Dewhirst further testified that he did not look for any evidence to contradict the charts.

17 Page It must be remembered that the onus is on the defendants to prove that they have a kinship relationship with a member of the Cowichan Tribes. The fact that the Crown did not present any evidence to contradict Ms. Vanden Berg's conclusions does not mean, in and of itself, that the defendants have established the necessary relationship on a balance of probabilities. Moreover, Mr. Dewhirst's criticisms of Ms. Vanden Berg's work are legitimate. Nonetheless, I am not satisfied that his concerns undermine the validity of Ms. Vanden Berg's report. Therefore, having regard to the totality of the evidence, I am satisfied that Morris Jr., George and Sam have proven on a balance of probabilities that they have kinship ties with members of the Cowichan Tribes which began at some point after the signing of the treaty. Sam's father, Raphael Johnnie Jr., was a member of the Khenipsen, which is one of the seven traditional villages of the Cowichan Tribes. Morris Jr.'s grandmother, Esther Tom, was a member of the Cowichan, and George's grandmother, Sophina Ely, was a member of the Quamichan, another one of the seven villages that make up the present-day Cowichan Tribes. 64 There is however no evidence that any of the signatories to the treaties or other members of the bands had a kinship relationship with the Cowichan at the time of signing. Kinship Reciprocity in the Douglas Treaties 65 Having determined the existence and extent of the kinship relationship, I turn now to consider whether kinship reciprocity is recognized in the Douglas Treaties. In doing so, it is necessary to set out the relevant principles of treaty interpretation, paying particular attention to the manner in which the Douglas Treaties have been considered by the courts. Principles of Treaty Interpretation 66 In R. v. Marshall, [1999] 3 S.C.R. 456, [1999] 4 C.N.L.R. 161 [Marshall #1 cited to S.C.R.], Justice McLachlin (as she then was), in her dissent, confirmed at para. 78 the now well-settled principles governing treaty interpretation. Aboriginal treaties are unique. The goal is to choose the interpretation of common intention that best reconciles the parties' interests at the time of signing, presuming the integrity and honour of the Crown. A treaty should be construed liberally with any ambiguities resolved in favour of the Aboriginal signatories but the words of the treaty must be given the sense that they would naturally have held for the parties at the time of signing. Also, courts "cannot alter the terms of the treaty by exceeding what 'is possible on the language' or realistic". Similarly, Justice Binnie writing for the majority noted at para. 14 that "'[g]enerous' rules of interpretation should not be confused with a vague sense of after-the-fact largesse." 67 Finally, Aboriginal treaty rights must not be interpreted in a static or rigid way. They are not frozen at the date of signing. Treaty rights must be interpreted to allow for their modern exercise. This requires determining what modern practices are reasonably incidental to a core treaty right in its modern context. 68 At paras , Justice McLachlin described a useful two-step approach to treaty

18 Page 18 interpretation: First, the words of the treaty clause at issue should be examined to determine their facial meaning, in so far as this can be ascertained, noting any patent ambiguities and misunderstandings that may have arisen from linguistic and cultural differences. This exercise will lead to one or more possible interpretations of the clause. As noted in Badger, supra, at para. 76, "the scope of treaty rights will be determined by their wording". The objective at this stage is to develop a preliminary, but not necessarily determinative, framework for the historical context inquiry, taking into account the need to avoid an unduly restrictive interpretation and the need to give effect to the principles of interpretation. 83 At the second step, the meaning or different meanings which have arisen from the wording of the treaty right must be considered against the treaty's historical and cultural backdrop. A consideration of the historical background may suggest latent ambiguities or alternative interpretations not detected at first reading. Faced with a possible range of interpretations, courts must rely on the historical context to determine which comes closest to reflecting the parties' common intention The Supreme Court of Canada reviewed the Douglas Treaties in Morris. At paras. 19, 25 and 33 the majority stated: 19 The Douglas Treaties were the reflections of oral agreements reduced to writing by agents of the Crown. The historical background to these treaties has been ably documented by the B.C. Court of Appeal in three decisions: see R. v. White (1964), 50 D.L.R. (2d) 613; R. v. Bartleman (1984), 55 B.C.L.R. 78; and Saanichton Marina Ltd. v. Claxton (1989), 36 B.C.L.R. (2d) 79. This historical context reveals an overriding intention that the methods by which the Saanich traditionally hunted be brought within the Treaty's protection The promises made by Douglas confirm that the parties intended the Treaty to include the full panoply of hunting practices in which the Tsartlip people had engaged before they agreed to relinquish control over their lands on Vancouver Island.

19 Page This conclusion is dictated by the common intentions of the parties to the Treaty, as distilled from the context in which the Treaty was entered into. The purpose of the hunting clause was to preserve the traditional Tsartlip way of life, including methods of gathering food.... In Morris, the protected practice was night hunting with illumination. 70 The defence relies to a great extent on the case of R. v. Bartleman, a 1984 decision of the B.C. Court of Appeal. I agree with the defence when it submits that "it is already decided that the territory over which a rights holder of the Douglas Treaty can hunt is in excess of the specific territories described in the particular Treaty." 71 Indeed, in Bartleman at 89 the court found the Douglas Treaty with the North Saanich Band protected hunting on unoccupied lands that were ceded as well as on other lands that were part of the Saanich's traditional hunting area. However, at 92, in noting the restrictions imposed by the treaty on hunting rights, the court found: In my opinion, the restrictions placed by the Treaty on the hunting rights of the Indians entitled to exercise the Treaty rights are, first, that the hunting must take place within the geographical area of the traditional hunting grounds of the Saanich people... [Emphasis added.] 72 In R. v. White and Bob (1964), 50 D.L.R. (2d) 613, 52 W.W.R. 193 (B.C.C.A.) [White and Bob cited to D.L.R.], Justice Davey determined at 618 that Aboriginals' "peculiar rights of hunting and fishing over their ancient hunting grounds arising under agreements by which they collectively sold their ancient lands are Indian affairs" (emphasis added). This decision confirms that hunting pursuant to a treaty right must be exercised on lands traditionally used for that purpose by the defendant's ancestors. 73 Cases concerning other treaties have also interpreted treaty rights as being site specific and pertaining to traditional hunting grounds. In R. v. Sundown, [1999] 1 S.C.R. 393, [1999] 2 C.N.L.R. 289 [cited to S.C.R.], Justice Cory noted at para. 25 that "consideration should be given to the evidence as to where the hunting and fishing were done and how the members of the First Nation carried out these activities." 74 In R. v. Marshall, [1999] 3 S.C.R. 533, [1999] 4 C.N.L.R. 301 [Marshall #2 cited to S.C.R.], at para. 17 the Court wrote: The onus will then switch to the accused to demonstrate that he or she is a member of an aboriginal community in Canada with which one of the local

20 Page 20 treaties described in the September 17, 1999 majority judgment was made, and was engaged in the exercise of the community's collective right to hunt or fish in that community's traditional hunting and fishing grounds. The Court's majority judgment noted in para. 5 that no treaty was made by the British with the Mi'kmaq population as a whole:... the British signed a series of agreements with individual Mi'kmaq communities in 1760 and 1761 intending to have them consolidated into a comprehensive Mi'kmaq treaty that was never in fact brought into existence. The trial judge, Embree Prov. Ct. J. found that by the end of 1761 all of the Mi'kmaq villages in Nova Scotia had entered into separate but similar treaties. [Emphasis added.] The British Governor in Halifax thus proceeded on the basis that local chiefs had no authority to promise peace and friendship on behalf of other local chiefs in other communities, or to secure treaty benefits on their behalf. The treaties were local and the reciprocal benefits were local. In the absence of a fresh agreement with the Crown, the exercise of the treaty rights will be limited to the area traditionally used by the local community with which the "separate but similar" treaty was made It is also well settled that treaty rights are collective or communal rights. In Marshall #2 at para. 17, the Court found, "[m]oreover, the treaty rights do not belong to the individual, but are exercised by authority of the local community to which the accused belongs". In R. v. Shipman, 2007 ONCA 338, 85 O.R. (3d) 585 [Shipman], a case concerning sheltering which will be discussed much later, the Ontario Court of Appeal recently confirmed that a treaty right is a communal right. Relying on Marshall #2, the court in Shipman stated at para. 43 that "treaty harvesting rights are communal in nature." 76 The Supreme Court of Canada, in relation to Aboriginal rights, explained what it meant by "communal" in R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207 [Powley], at para. 24: [Aboriginal rights] must be grounded in the existence of a historic and present community, and they may only be exercised by virtue of an individual's ancestrally based membership in the present community In R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686 [Sappier], Justice Bastarache stated at para. 26: 26 The right to harvest wood for domestic uses is a communal one. Section 35 recognizes and affirms existing aboriginal and treaty rights in order to assist in

21 Page 21 ensuring the continued existence of these particular aboriginal societies. The exercise of the aboriginal right to harvest wood for domestic uses must be tied to this purpose. The right to harvest... is not one to be exercised by any member of the Aboriginal community independently of the aboriginal society it is meant to preserve.... Kinship Reciprocity as a Treaty Right 78 Given the totality of the evidence, I am unable to agree with the defendants that the signatories intended to include kinship reciprocity as a treaty right, even though I accept that it was a significant part of Coast Salish culture at the time of signing. On a plain reading, the treaty expresses no right to kinship reciprocity or to access territories lying within the boundaries of third party Aboriginal groups. It simply provides a right "to hunt over the unoccupied lands". 79 Neither the treaties nor the historical documents, even when given a generous and liberal interpretation, contain any mention of an intention to affect third parties or to provide for hunting rights in areas controlled by other Coast Salish First Nations who were not a party to the treaty. Even Ms. Vander Berg acknowledged that there is no historical material discussing the potential for First Nations people to move from territory to territory based on kinship reciprocity. It is simply not plausible that the Aboriginal treaty signatories contemplated that they would be granted rights to hunt in areas they had never accessed in the past which fell outside of their ceded or extended traditional territory. As in Bartleman and Marshall #2, the only logical conclusion is that the parties intended the hunting right to extend solely to areas traditionally used by the signatories. Other case law, as discussed above, also supports the finding that hunting pursuant to a treaty right must be exercised on lands traditionally used for that purpose by the defendants' ancestors. 80 I accept the Crown's argument that it is a fundamental anomaly to find that the treaty signatories could impose themselves on Aboriginal groups who lived in a distant area and were unaware of and unconnected to the treaty right. If that were so, those other Aboriginal groups would have no ability to determine whether an outside treaty signatory could hunt in their traditional hunting areas. Further, I agree with the Crown that it is contrary to common sense that because of a treaty right based on kinship reciprocity, the defendants would enjoy a greater liberty to hunt over the alleged traditional territory of the Cowichan than the Cowichan themselves, whose Aboriginal right to hunt can be limited by the provincial Crown. This is because, according to Morris, when provincial legislation infringes on an aboriginal right, it is not subject to the justification test. The Crown signatories could not have intended to drastically preference one group of Aboriginals if, as noted in Morris at para. 33, the treaty was "designed to benefit the settlers, whose interests at the time lay in friendship with the Indian majority on Vancouver Island." 81 I also cannot find that kinship reciprocity is a traditional hunting practice or method that is included in the treaty. It was only those practices in which First Nations people had engaged

22 Page 22 pre-treaty that were protected. While the Tsartlip, Songhees and Nanaimo may have had the "potential" opportunity to hunt at Cowichan Lake, the fact that no evidence was presented to show that they did means hunting at Cowichan Lake cannot be considered a traditional hunting practice. 82 Further, the Concise Oxford English Dictionary, 11th ed., defines "practice" as "the customary or expected procedure or way of doing something" and "method" as "a particular procedure for accomplishing or approaching something". Where a person may hunt is not procedural nor is the concept of kinship reciprocity a hunting method. 83 Even though kinship reciprocity itself is not a treaty right, I accept that if there is sufficient evidence to establish that the Aboriginal signatories had an historical presence at a particular location because of kinship relationships, that area would be considered part of the band's traditional territory and a treaty beneficiary would be able to exercise the treaty right to hunt at that area. In this case, there is no evidence that the defendants' ancestors hunted at Cowichan Lake or ever went to that particular area, even with the concept of kinship reciprocity being a feature of Coast Salish culture. In fact, the defendants conceded this point. Moreover, the defence has led very little or no evidence of any actual traditional hunting territory of the Tsartlip, Songhees or Nanaimo. 84 I cannot accept the defendants' sweeping proposition that any area which "in principle" could have been or could now be accessed through kinship ties should be considered a traditional territory even though the families' ancestors or band never went there. Bartleman does not provide for this. Bartleman simply extended the hunting right from ceded lands specifically described in the treaty to all lands which the tribe "had traditionally hunted". 85 True, the court in Bartleman found at 90 in relation to the Douglas Treaty signatories:... Every tribe hunted over the land of other tribes. Every tribe knew that every other tribe was making a similar treaty. With respect to the first alternative interpretation, there would have been no protection at all for a hunting and fishing economy for any tribe if its right to hunt and fish over the neighbouring land of the other tribes were all being extinguished.... However, this is a far cry from establishing a precedent that hunting over unoccupied lands encompasses an area where the signatories did not hunt at all at the time of signing. In Bartleman, at the time the treaties were signed, the signatories were already hunting on that other tribe's land and they continued to do so after signing. 86 Here, during oral submissions, defence counsel stated, "In my submission, what you have in this case is not much different [from Bartleman]. The distinction is that we don't have evidence that Cowichan Lake was actually a place that the Songhees went to." In my opinion, this factual difference is crucial and defeats the defendants' claim that they have a treaty right to hunt in this area. The defence submits that at the time of signing, the signatories of the treaty could have gone to Cowichan Lake if they wanted to, assuming there was a kinship relationship between some