Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-06-02] British Columbia. Supreme Court Jun 2, 1992

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 1384  Submissions   by Mr.   Bell  1 June 2, 1992  2 Vancouver, B.C.  3  4 CORAM: Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A.:  5  6 THE REGISTRAR:  Order in court.  In the Court of Appeal of  7 British Columbia, Tuesday, June 2nd, 1992.  In the  8 matter of Delgamuukw versus Her Majesty the Queen at  9 bar, my lords.  10 MS. LINDGREN:  In response to Mr. Justice Lambert's question  11 yesterday, I am placing the dispatch from the  12 Secretary of State for the colonies, the Duke of  13 Newcastle.  We will be requesting that that be placed  14 in context.  And we provided you with an exhibit  15 number yesterday, however, that was just a handwritten  16 form.  So we have inserted in your white books the  17 transcribed exhibit of the original letter from  18 Governor Douglas to Duke of Newcastle to explain the  19 context of that response from the Secretary.  20 TAGGART, J.A.:  That was the one with reference to your  21 something or other of something or other?  22 MS. LINDGREN:  Request for money for extension of title.  23 And in addition to that Mr. Williams read in the  24 missing page from the excerpts from the appellants'  25 Appendix J, and that also has been inserted in your  26 reference books.  27 TAGGART, J.A.:  Thank you.  Mr. Bell.  28 MR. BELL:  Thank you, my lords.  I am appearing between Mr.  29 Williams and Mr. Taylor.  I sort of feel like the  30 peanut butter in the sandwich here.  31 I am going to be addressing your lordships on the  32 Royal Proclamation today, and our revised factum  33 doesn't say much about it, except that we have adopted  34 the position as stated in the earlier factum of the  35 Province on this point.  And it is set out in Volume 2  36 of our appendices at Tab A.  I don't intend to refer  37 to that volume in the course of my argument.  I have  38 extracted the portions that I intend to refer to.  39 TAGGART, J.A.:  Where does this appear in the factum?  40 MR. WILLIAMS: Tab 5, my lords, page 28.  It's G, paragraph 70.  41 MR. BELL:  Perhaps just for the record I should read paragraph  42 70.  It says the Province adopts the argument  43 concerning the Royal Proclamation of 1763 as set out  44 in the factum previously filed by the Attorney General  45 of British Columbia, the R&D factum at Tab 8 and in  46 Appendix 6 of that factum.  See Appendix A of this  47 factum. 1385  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  WALLACE,  MR. WILLIAMS  WALLACE, J.A  MR. BELL  LAMBERT,  All of the materials that I'll be referring to  today are in our white book labelled W3, which your  lordships should have.  And there are speaking notes  enclosed with W3, which I will now ask your lordships  to turn to.  J.A.:  What tab is this in the factum itself?  Tab 5, my lord.  Tab 5.  So, if I could take your lordships to the speaking  notes.  I will be following them rather closely.  It  might be useful just to mark on the speaking notes  that they belong with Volume W3.  Now, the appellants take the position that the  Royal Proclamation applies in British Columbia.  The  trial judge found that the Royal Proclamation had  never applied in British Columbia, and the Province  supports that conclusion of the trial judge.  Indeed,  my lords, that is our main submission here today, that  the Royal Proclamation of 1763 has never applied in  British Columbia.  I would just like to refer to my outline in the  speaking notes to show the court where I will be  heading with this argument.  The argument is supported by four main  propositions, and I want to review them briefly.  Proposition A is that the Royal Proclamation of 1763  does not apply outside defined geographical boundaries  which do not include British Columbia.  The second major proposition B.  The Royal  Proclamation did not apply to later acquired colonies  such as British Columbia.  The third major proposition C.  The ambiguity rule  does not apply to the appellants in relation to the  Royal Proclamation.  And the fourth major proposition D.  The Colonial  Laws' Validity Act, insofar as it applied to British  Columbia, did not apply to the Royal Proclamation.  J.A.:  Mr. Bell, I understand these points, and of  course they are crucial.  I just want to be completely  clear on the question of what difference it makes to  this case if the Royal Proclamation applies or if it  doesn't apply or how it applies; that is, by being  positive law or being a -- perhaps a statement of  international law at 1763.  I know, and my cohorts have reaffirmed for me,  that there is an issue about consent to the loss of  land, but can you tell me what the issues are in the 1386  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  case that are affected by whether the Royal  Proclamation applies or it doesn't apply and how it  applies.  MR. BELL:  Yes, my lord.  The Province takes the position that  the Royal Proclamation is declaratory of an ongoing  aboriginal interest, and Mr. Williams and Mr. Taylor  would be addressing or have addressed and will be  addressing your lordships as to the content of that  interest.  The Province is also concerned that the Royal  Proclamation could be argued, might give the  appellants more rights than they had under the common  law, and specifically vis-a-vis the Province.  And the  Province is concerned, in part, about the relationship  between the Royal Proclamation and Section 91 (24) of  the Constitution Act, 1867 respecting Indians and  lands reserved for Indians.  So those points, my lords, in a way motivate the  Province's position.  The Province's position, of  course, is that the Royal Proclamation has never  applied in British Columbia so those questions don't  arise.  LAMBERT, J.A.:  And the greater rights than common law are  rights in relation to not being deprived of their land  except by their consent.  Is that correct, or is it  more than that?  MR. BELL: The Province doesn't agree with that position, my  lord.  There is language in the Royal Proclamation  that I could refer your lordship to, if you want, but  it says -- we say that it supports the position that  consent of the Indians to alienation of their lands to  the Crown or otherwise was not required under the  Royal Proclamation.  LAMBERT, J.A.:  Yes.  MR. BELL:  And I don't know how much your lordship wants to get  into it at this point.  LAMBERT, J.A.:  Perhaps I should stop you for a minute.  I  understand these four issues that you have set out,  and I see them as issues and I can understand the  argument that you are going to make, I believe.  What  I don't have a good focus on is what difference it  makes to the rest of the case whether the Royal  Proclamation applies or doesn't apply, and what effect  it has on the rest of the case, and if it doesn't  apply directly but applies in some other way; that is,  it's not directly applicable in its geographical scope  but is applicable in some other way.  And its the 1387  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. BELL  LAMBERT,  MR. BELL  LAMBERT,  MR. BELL  relationship between the Royal Proclamation issues and  the rest of the case that I am a little vague about.  Perhaps we'll come to it in some other way.  I  thought I should indicate that now.  I feel a little uncomfortable, my lord.  I feel like  I'm being asked to make an argument on behalf of the  appellants here, and it really is up to the appellants  to explain these questions.  J.A.:  Perhaps when I reread the transcript and the  appellants' factum I'll have a better focus on that  than I do now.  I don't think I should press you -- I  don't think I should press you further on it.  I  thought I should just mention that I don't have it  clearly in my mind.  Thank you, my lord.  Perhaps if I could give it some  thought, and if I have any better ideas I could  address you a little later on this question today.  J.A.:  Yes.  That would be fine.  If I could return to my outline then.  I would like  to focus your lordships' attention on the main  proposition A.  The Royal Proclamation of 1763 does  not apply outside defined geographical boundaries  which do not include British Columbia.  And under this  main proposition there are four sub-propositions.  First of all Britain did not acquire any rights under  the Treaty of Paris to northwestern North America west  of Mississippi.  Second, the wording of the Royal Proclamation  necessarily implies a western and northwestern  boundary.  Thirdly, extrinsic evidence shows that a defined  western boundary was intended.  And fourth, the Royal Proclamation was not  intended to apply to Indians outside its boundaries.  And in this respect I will refer particularly to the  phrase of the Royal Proclamation which refers to  Indians with whom we are connected and who live under  our protection.  Now, if I could turn your lordships to page 3 of  the speaking notes.  Before I get into the substance  of the argument, I would just like to explain how the  tab references in Volume W3 work.  They are not listed  in any particular order, however, they are referenced  in the paragraph in the speaking notes to which they  refer.  As I say, they don't follow the paragraph  numbers in the speaking notes.  The first thing I think we should do is remind 1388  Submissions by Mr. Bell  1 ourselves as to what the Royal Proclamation had to  2 say.  I would like to refer your lordships to Tab 11  3 of Volume W3.  This is an extract from the Royal  4 Proclamation.  It starts off:  5  6 "A Proclamation.  7 George R.  8 Whereas we have taken into Our Royal  9 Consideration the extensive and valuable  10 acquisitions in America, secured to Our Crown  11 by the late Definitive Treaty of Peace,  12 concluded at Paris the Tenth Day of February  13 last; and being desirous, that all Our loving  14 subjects, as well of Our Kingdoms as of Our  15 Colonies in America, may avail themselves, with  16 all convenient speed, of the great benefits and  17 advantages which must accrue therefrom to their  18 Commerce, Manufactures, and Navigation;  we  19 have thought fit, with the advice of Our Privy  20 Council, to issue this Our Royal Proclamation."  21  22 And then he goes on to Part 1 of the Royal  23 Proclamation to describe the new governments that are  24 created, Quebec, east and west Florida and Grenada.  25 Part 2 doesn't appear in this extract.  It  26 describes the powers of those governments.  27 Part 3 deals with land grants for soldiers who  28 served Britain in the North American war with France.  29 Part 4 deals with relations with the Indians.  And  30 that's extracted here at page 489.  I think it's  31 useful for us to review it in some detail so we have  32 it in mind as the argument proceeds.  33 Part 4.  34  35 "And whereas it is just and reasonable, and  36 essential to Our Interest and the Security of  37 Our Colonies, that the several Nations or  38 Tribes of Indians, with whom we are connected,  39 and who live under Our Protection, should not  40 be molested or disturbed in the Possession of  41 such Parts of Our Dominions and Territories as,  42 not having been ceded to, or purchased by Us,  43 are reserved to them or any of them as their  44 Hunting Grounds."  45  46 That's the preamble.  It then continues.  47 1389  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22 This portion deals with commands to the governors  23 of the colonies not to issue patents of land beyond  24 the western boundaries of their colonies.  25 The Proclamation continues:  26  27 "And we do further declare it to be Our Royal  28 Will and Pleasure, for the present as  29 aforesaid, to reserve under Our Sovereignty,  30 Protection, and Dominion, for the Use of the  31 said Indians, all the Lands and Territories not  32 included within the Limits of Our said Three  33 New Governments, or within the Limits of the  34 Territory granted to the Hudson's Bay Company,  35 as also all the Lands and Territories lying to  36 the Westward of the Sources of the Rivers which  37 fall into the Sea from the West and North West,  38 as aforesaid;"  39  40 Stopping there for a moment.  This creates what is  41 referred to by some as the hundred percent reserve.  42 This is an area of the continent that's under the  43 direct control of the colonial office in London.  44 Carrying on:  45  46 "And we do hereby strictly forbid, on Pain of  47 Our Displeasure, all Our loving Subjects from 1390  Submissions by Mr. Bell  1 making any Purchases or Settlements whatever,  2 or taking Possession of any of the Lands above  3 reserved, without Our especial Leave and  4 Licence for that Purpose first obtained."  5  6 And to back this up, he goes on:  7  8 "And we do further strictly enjoin and require  9 all persons whatever, who have either wilfully  10 or inadvertently ceded themselves upon any  11 lands within the Countries above described, or  12 upon any other lands, which not having been  13 ceded to, or purchased by us, are still  14 reserved to the said Indians as aforesaid,  15 forthwith to remove themselves from such  16 settlements."  17  18 A command to remove settlers from the hundred  19 percent reserve.  20 Carrying on:  21  22 "And whereas great Frauds and Abuses have been  23 committed in the purchasing Lands of the  24 Indians, to the great Prejudice of Our  25 Interests, and to the great Dissatisfaction of  26 the said Indians; in order therefore to prevent  27 such Irregularities for the future, and to the  28 end that the Indians may be convinced of Our  29 Justice, and determined Resolution to remove  30 all reasonable Cause of Discontent, we do, with  31 the Advice of Our Privy Council strictly enjoin  32 and require, that no private Person do presume  33 to make any Purchase from the said Indians of  34 any Lands reserved to the said Indians, within  35 those parts of Our Colonies where we have  36 thought proper to allow settlement;"  37  38 Stopping there for a moment.  This is what some  39 witnesses refer to as the partial reserve, and it's  40 those parts of the existing colonies which have not  41 been already ceded to the Crown.  42 Carrying on:  43  44 "... but that if, at any Time, any of the said  45 Indians should be inclined to dispose of the  46 said Lands, the same shall be purchased only  47 for Us, in Our Name, at some public meeting or 1391  Submissions by Mr. Bell  1 assembly of the said Indians to be held for  2 that Purpose by the Governor or Commander in  3 Chief of Our Colonies respectively, within  4 which they shall lie: and in case they shall  5 lie within the Limits of any Proprietary  6 Government, they shall be purchased only for  7 the Use and in the Name of such Proprietaries,  8 conformable to such Directions and Instructions  9 as We or they shall think proper to give for  10 that Purpose:"  11  12 A number of the colonies were created by means of  13 proprietary grants from the Crown.  That's what he is  14 referring to there, Pennsylvania, Rhode Island, and a  15 few others that I can't think of at the moment.  16 So that's the conclusion of the partial reserved  17 portion.  It sets out the procedure for acquiring  18 lands from Indians.  19 Carrying on, we deal with the subject of free  20 trade with the Indians.  It says:  21  22 "And We do, by the Advice of Our Privy Council,  23 declare and enjoin, that the Trade with the  24 said Indians shall be free and open to all our  25 Subjects whatever, provided that every Person,  26 who may incline to trade with the said Indians,  27 do take out a Licence for carrying on such  28 Trade from the Governor or Commander in Chief  29 of any of Our Colonies respectively, where such  30 Person shall reside; and also give Security to  31 observe such Regulations as We shall at any  32 Time think fit, by Ourselves or by Our  33 Commissaries to be appointed for this Purpose,  34 to direct and appoint for the Benefit of the  35 said Trade; And We do hereby authorize, enjoin,  36 and require the Governors and Commanders in  37 Chief of all our Colonies respectively, as well  38 those under Our immediate Government as those  39 under the Government and Direction of  40 Proprietaries, to grant such Licences without  41 Fee or Reward, taking especial Care to insert  42 therein a Condition, that such Licence shall be  43 void, and the Security forfeited, in Case the  44 Person, to whom the same is granted, shall  45 refuse or neglect to observe such Regulations  46 as We shall think proper to prescribe as  47 aforesaid. 1392  Submissions by Mr. Bell  1  2 Now, I haven't reproduced here the final  3 paragraph.  It's the paragraph that authorizes the  4 taking of fugitives from justice who have fled to the  5 territories reserved for the Indians, to be returned  6 to the colony where they will be charged and their  7 trial.  8 Now, if I could refer your lordships to Tab 2.  9 This is a map.  It's plate 42 from the Historical  10 Atlas of Canada.  I want to refer your lordships  11 specifically to the last page, which is the colour  12 reproduction of a portion of the map.  Now, the map I  13 present to your lordships is by way of illustration  14 only, to show you where my argument is heading on the  15 question of the boundaries.  16 You will see the territory marked as Indian  17 territory on the map, it has a western boundary, which  18 is the Mississippi River, and we will come to that in  19 more detail.  It's bounded on the north by Rupert's  20 Land and on the northeast by Quebec and on the east  21 and south by the British colonies.  This is the  22 territory that in my respectful submission is included  23 within the hundred percent reserve.  I don't say that  24 this map is authoritative.  It simply illustrates the  25 thrust of my argument on this point.  26 If I could just follow up on that comment.  There  27 is a portion of the orange coloured territory which  28 extends up into Newfoundland, or Labrador rather, and  29 I'm going to be referring your lordships to the  30 Labrador boundary case which suggested that the Royal  31 Proclamation did not extend into that territory.  So I  32 don't rely on this map as authority.  There may be a  33 problem with it.  There may be a problem with my  34 understanding of it.  At any rate, I am simply  35 offering it as an illustration.  36 This map was prepared by the editors of the  37 Historical Atlas of Canada, Mr. Harris and Mr.  38 Matthews, and the attachments show the course of the  39 Seven Years' War on a diagram, two diagrams.  There is  40 a brief account of the Treaty of Paris and the Royal  41 Proclamation of 1763, and the history of the Seven  42 Years' War.  I don't intend to review that in any  43 detail.  44 Returning then to my speaking notes.  I just want  45 to remind your lordships that the preamble to the  46 Royal Proclamation referred to British acquisitions in  47 North America.  Those acquisitions were gained under 1393  Submissions by Mr. Bell  1 the Treaty of Paris.  2 Our first major submission here is that Britain  3 did not acquire any rights under that treaty to  4 northwest and North America west of the Mississippi.  5 I want to refer to some provisions of the Treaty  6 of Paris, and that's under Tab 1 of W3.  Specifically  7 Article IV of that treaty, which is at the bottom of  8 page 85.  It says:  9  10 "His Most Christian Majesty renounces all  11 pretensions which he has heretofore formed or  12 might have formed to Nova Scotia or Acadia in  13 all its parts, and guaranties the whole of it,  14 and with all its dependencies, to the King of  15 Great Britain:  Moreover, his Most Christian  16 Majesty cedes and guaranties to his said  17 Britannick Majesty, in full right, Canada, with  18 all its dependencies, as well as the island of  19 Cape Breton, and all the other islands and  20 coasts in the gulph and river of St. Lawrence,  21 and in general every thing that depends on the  22 said countries, lands, islands, and coasts,  23 with the sovereignty, property, possession, and  24 all rights acquired by treaty, or otherwise,  25 which the Most Christian King and the Crown of  26 France have had till now over the said  27 countries, lands, islands, places, coasts, and  28 their inhabitants, so that the Most Christian  29 King cedes and makes over the whole to the said  30 King, and to the Crown of Great Britain, and  31 that in the most ample manner and form, without  32 restriction, and without any liberty to depart  33 from the said cession and guaranty under any  34 pretence ..."  35  36 So for the purposes of this inquiry what was ceded  37 to Great Britain was Canada.  What did Canada  38 constitute?  What did the British think they were  39 getting when they got Canada?  In my respectful  40 submission, my lords, the Canada at that stage  41 consisted of lands that we know as Quebec and  42 extending westward through the Ohio district to the  43 Mississippi and northward to the Great Lakes  44 watershed.  45 And I want to refer your lordships to some  46 evidence as to what the French considered Quebec  47 comprised at that stage, and that's under Tabs 4 and 5 1394  Submissions by Mr. Bell  1 of W3.  2 Tab 4 is a report by an administrator in New  3 France in 1754.  The name is Sieur Boucault.  It's in  4 French, and you will notice on the first page there  5 are four numbered items following the words:  6  7 "Son etendue actuelle comprend ..."  8  9 If you will turn over to Tab 5, we'll get a  10 translation of these items.  This is Mr. Greenwood  11 testifying at the trial.  And he's asked at line 24:  12  13 "Q   Thank you.  Tab 181 what is this, please?  14 A   This is Boucault's report, 1754.  Boucault was  15 an administrator in New France, produced a  16 report describing Canada in 1754, and this  17 again is -- or this isn't taken from the  18 Ontario papers, it's in fact published in the  19 report of the Archives of the Province of  20 Quebec, and I have a footnote reference.  21 Q   Yes.  Well, the footnote reference is number  22 181.  What is the -- what is the reference in  23 the document itself to which you direct his  24 lordship's attention?  25 A   The second paraghraph.  26 Q   Yes?  27 A 'a l'Ouest par les terres espagnoles et par  28 des terres ou des mers inconnue.'  29 MR. GOLDIE:  All right.  That's the reference to the  3 0 west.  31 THE COURT:  'By the lands or seas unknown'?  32 A   Yes, that's essential --  33 MR. GOLDIE:  34 Q   Now, what is the -- what is the paragraph in  35 which the numbered paragraphs begin?  It  36 begins:  37 'Son etendue actuelle comprende'  3 8 And 1, 2, 3, 4?  39 A   'Canada now comprises'.  40 Q   I see.  41 A   L'Isle Royale, Labrador, the lands abutting on  42 the St. Lawrence River from its mouth to its  43 source, and all the other tributaries that  44 discharge into it."  45  46 And that's his translation of Boucault's report.  47 1395  Submissions by Mr. Bell  1 "St. Lawrence River from its mouth to its  2 source, and all the other tributaries that  3 discharge into it."  4  5 That's a description of the Great Lakes watershed.  6 I raise this because the appellants have asserted that  7 Canada extended far to the west, perhaps even to the  8 Pacific.  I just want your lordships to be aware that  9 there is evidence from the French themselves that  10 Canada extended only as far west as the Great Lakes  11 watershed.  12 Now, I want to refer yourself back again to the  13 Treaty of Paris under Tab 1.  The Treaty of Paris  14 established the boundary between Britain and France in  15 North America, and it is set out in Article VII of the  16 treaty on page 86.  And I'll read it.  17  18 "In order to re-establish peace on solid and  19 durable foundations, and to remove forever all  20 subject of dispute with regard to the limits of  21 the British and French territories on the  22 continent of America; it is agreed, that, for  23 the future, that confines between the dominions  24 of his Britannick Majesty and those of his Most  25 Christian Majesty, in that part of the world,  26 shall be fixed irrevocably by a line drawn  27 along the middle of the River Mississippi, from  28 its source to the river Iberville, and from  29 thence, by a line drawn along the middle of  30 this river, and the lakes Maurepas and  31 Potchartrain to the sea."  32  33 Now, Chief Justice Marshall had something to say  34 about this.  And I would like to refer your lordships  35 under Tab 10 to an extract from Johnson v. Mcintosh.  36 Chief Justice Marshall in his description of the  37 history here, and it's under Tab 10 at page 582, the  38 second leaf in, about two-thirds of the way down the  39 left-hand side -- left-hand column he says:  40  41 "Great Britain, on her part, surrendered to  42 France all her pretensions to the country west  43 of Mississippi."  44  45 So we have an international boundary established  46 along the middle of Mississippi River, from its source  47 to its mouth. 1396  Submissions by Mr. Bell  1 Now, in order to understand what claims France  2 could make in western North America, I just want to  3 remind your lordships about the doctrine of discovery.  4 And it's summarized by Chief Justice Marshall on the  5 previous page under Tab 10.  And he says:  6  7 "This principle was that discovery gave title to  8 the government by whose subjects, or by whose  9 authority, it was made against all other  10 Europeans governments, which title might be  11 consummated by possession."  12  13 I want to emphasize the last phrase "consummated  14 by possession".  It's our submission, my lords, that  15 France had no title in western North America that  16 could be granted to Britain under the Treaty of Paris.  17 HUTCHEON, J.A.:  Well, I don't understand that at all.  It said  18 that it did have west of the Mississippi.  19 MR. BELL:  West of the Mississippi it had Louisiana, yes.  I'm  20 sorry, maybe I misled your lordship, but I am  21 referring to northwestern North America.  France had  22 no title or possession in northwestern North America  23 that could be conveyed to Britain by means of the  24 Treaty of Paris, specifically including British  25 Columbia and the territory of the appellants.  26 HUTCHEON, J.A.:  That's exactly what they thought they had in  27 1754, I thought.  It may not matter, but what they  28 ceded to Britain was what you have described, but they  29 claimed more, and that's what Chief Justice Marshall  30 said.  31 MR. BELL:  I'll deal with the claims in a moment, my lord.  32 What France had, and if I could refer your lordships  33 to paragraph 1.5 of my speaking notes.  I am saying  34 that in 1763 France had no sovereignty property,  35 possession, or rights over northwest North America.  36 It did have a few distant trading posts on the  37 prairies, but these were all east of the Rockies, my  38 lords.  And I'll come to the claim of St. Lusson in a  39 few moments.  I think that may be the claim that your  40 lordship was referring to.  41 In any case, the prairies were claimed by the  42 Hudson's Bay Company as part of Rupert's Land, and  43 Rupert's Land had changed hands between the English  44 and the French, and by the Treaty of Utrecht in 1706  45 Rupert's Land had been ceded again by the French back  46 to the Hudson's Bay Company, although the boundaries  47 of Rupert's Land had never been settled. 1397  Submissions by Mr. Bell  1 So from the perspective of the British, what they  2 acquired in Rupert's Land was simply the removal of  3 the French interlopers.  They did not acquire any  4 title that the British themselves didn't consider they  5 already had.  And of course, as I said, Rupert's Land,  6 and we'll come to it later in more detail, I did not  7 extend to include British Columbia.  8 I just want to refer your lordships to what the  9 trial judge had to say on this point.  That's under  10 Tab 3.  Under Tab 3 I have reproduced the trial  11 judge's entire judgment on this issue.  If you could  12 turn to page 216.  In the second last paragraph, after  13 reviewing the various claims and the maps that show  14 what was known about northwest North America, the  15 trial judge concludes in the last sentence of that  16 paragraph:  17  18 "I am unable to conclude that France ceded the  19 prairies or anything west of the Mississippi,  20 let alone British Columbia, to Great Britain by  21 the Peace of Paris in 1763.  22 For these reasons it cannot be said that  23 those vast areas were British possessions at  24 the time of the Royal Proclamation, 1763."  25  26 My submission, my lord, is that there is ample  27 evidence to support this conclusion of the trial  28 judge.  I just want to refer your lordship briefly  29 to -- your lordships briefly to it.  Before I do that,  30 I want to refer to another statement of the trial  31 judge at page 228 of the judgment on this point.  The  32 last paragraph on page 228 he says:  33  34 "As to lands, I have no doubt the lands of North  35 America north and west of the headwaters of the  36 Mississippi were not lands over which the  37 British Crown had any authority in 1763, except  38 for Rupert's Land, which was not within the  39 reach of the Proclamation."  40  41 And that's how he ties the issue into the  42 authority of British under the Proclamation.  43 I just want to refer to a couple of examples of  44 the evidence that supports the trial judge's  45 conclusion that there was no French or British  46 discovery, let alone occupation or other assertion of  47 sovereignty over any part of what is now British 1398  Submissions by Mr. Bell  1 Columbia prior to 1763.  I want to ask your lordships  2 to turn to Tab 27.  This is an extract from a summary  3 of the evidence of Dr. Farley who conducted a detailed  4 study of 18th century maps, which he presented to the  5 court.  In paragraph 11 you will see his conclusion.  6  7 "No published maps or other documents prior to  8 1763 show sovereignty of any country over what  9 is now the mainland of British Columbia."  10  11 And that's the result of an exhaustive study of  12 many maps, which I don't intend to refer your  13 lordships to.  14 Carrying on in my speaking notes.  I say Britain  15 also did not claim any part of British Columbia until  16 Vancouver's voyage in 1792, except possibly for Drake,  17 which I'll deal with in a moment.  And that's  18 supported by authority at page 28 -- at Tab 28 rather,  19 pages 43 and 44.  20 TAGGART, J.A.:  Dr. Farley again?  21 MR. BELL:  This is Dr. Farley again, my lord.  22 After reviewing the explorations of the Russians  23 and the Spanish, northwestern and North America, about  24 halfway down the page he talks about Cook's voyages.  25 And Cook, although it doesn't appear in this passage,  26 Cook took possession in Prince Williams Sound, which  27 is in Alaska, and that would have been in 1778.  Until  28 Vancouver's voyage in 1792, there were no further  29 British claims to possession.  30 And Dr. Farley says at the bottom of the page  31 here:  32  33 "In 1792 Vancouver entered and named Possession  34 Sound, a branch of Admiralty Inlet, latitude  35 approximately 48 degrees N.  There he laid  36 claim, in the name of Britain, to the country  37 north of 39 degrees 20 N, naming that part  38 northward of 45 degrees N, 'New Georgia'.  This  39 was considered to be the northern part of 'New  40 Albion' of Drake's day."  41  42 Bear in mind the doctrine of discovery requires  43 some element of possession in order to consummate the  44 claim.  45 Now, returning to my speaking notes at paragraph  46 1.9.  I want to deal here with a number of the -- what  47 Chief Justice Marshall refers to as extravagant claims 1399  Submissions by Mr. Bell  1 that were made.  In the competition between England  2 and France for expansion in the 17th and 18th  3 centuries, a number of the extravagant claims to  4 territory were made by both, and the St. Lusson claim,  5 which is relied on by the appellants, is, in my  6 submission, one of those extravagant claims.  7 And I want to refer your lordships to it now.  8 It's at Tabs 6 and 7 of the W3.  Tab 6 is the French  9 account of the claim by St. Lusson in 1671, and Tab 7  10 is a translation of that.  Starting at line 38.  11  12 "...proces-verbal of June 4th, 1671.  St. Lusson  13 proclaimed that he was taking formal possession  14 of the 'said Sault St. Marie' ..."  15  16 And he is stating Sault Ste. Marie now.  Bear that  17 in mind.  18  19 "... as well as of Lakes Huron and Superior, the  20 island of Caientaton (Manitoulin), and of all  21 the other countries, rivers, lakes and  22 tributaries contiguous and adjacent thereto, as  23 well discovered as to be discovered, which are  24 bounded on the one side by the Northern and  25 Western Seas, and on the other side by the  26 South Sea, including all its length and  27 breadth."  28  29 It sounds like a claim to the entirety of North  30 America.  Certainly it extends to the Pacific.  In my  31 respectful submission, my lord, not much weight can be  32 given to this claim as providing any title to the  33 French which they could have conveyed to the British  34 under the Treaty of Paris.  35 Let me take you back to Tab 10 and show you what  36 Chief Justice Marshall has to say about these things.  37 This is at page 582, the second page in.  And it  38 states in the first complete paragraph on the  39 left-hand column -- it was talking about the limits --  40 the chartered limits of Virginia.  In 1666 the King  41 granted a new charter to Virginia from the Atlantic  42 Ocean to the South Sea, and this is what Chief Justice  43 Marshall has to say about that.  He says:  44  45 "This river was comprehended in the chartered  46 limits of Virginia; but, though the right of  47 England to a reasonable extent of country, in 1400  Submissions by Mr. Bell  1 virtue of her discovery of the sea-coast, and  2 of the settlements she made on it, was not to  3 be questioned; her claim of all the lands to  4 the Pacific Ocean, because she had discovered  5 the country washed by the Atlantic, might,  6 without derogating from the principle  7 recognized by all, be deemed extravagant."  8  9 And he later on in the judgment goes on to  10 describe these claims as pompus.  11 Now, my lord, I also want to deal with the  12 question of Drake's claim, not because the appellants  13 raised it, but because it is mentioned by Mr. Justice  14 Hall in the Calder judgment as support for the notion  15 that the British made a claim to the Westcoast of  16 North America as early as 1579.  17 For this purpose I refer your lordships to tabs --  18 to Tab 9 rather.  And here we have reproduced the text  19 of a brass plaque that was placed by Drake near San  20 Franciso.  I don't need to read it to you in its  21 entirety, but basically he is taking possession of  22 what he refers to as Nova Albion.  And this article of  23 Bishop's deals with the question of exactly how far  24 north Drake got, whether it was to the 42nd or the  25 48th parallel.  26 Drake's claim was relied on later and acquired the  27 somewhat mythical reputation as a support for British  28 sovereignty of the northwest coast of North America.  29 I just want to deal with that point by referring back  30 to Tab 8.  This is an extract from an article by Lord  31 Ireland entitled "The Evolution of the Boundaries of  32 British Columbia", and he deals at page 263 with  33 Drake's claim.  I am going to read starting in the  34 second paragraph.  He says:  35  36 "British activity in the North Pacific begins  37 with the voyage of Sir Francis Drake, in 1579;  38 and it was Drake who first bestowed the name  39 upon the north-western portion of this  40 continent.  Landing in what is now California,  41 he took formal possession of the country and  42 named it New Albion; but whether or not New  43 Alibion was intended to extend as far north as  44 the area now comprising of British Columbia is  45 a matter of controversy.  46 Drake's voyage was an isolated episode; and  47 continous British interest in the North Pacific 1401  Submissions by Mr. Bell  1 dates from the arrival of Captain James Cook at  2 Nootka Sound, in the spring of 1778.  Cook was  3 but the precursor of many British navigators  4 and traders, and the outcome of their  5 activities was the clash with Spain and the  6 Nootka convention of 1790, which, for all  7 practical purposes, opened the Northwest coast  8 to occupation by any country.  9 Cook named many of the geographical  10 features of the Northwest Coast, but neither  11 set limits to the extent of New Alibion nor  12 bestowed any name of his own choosing upon the  13 area as a whole.  It remained for Captain  14 George Vancouver, who commenced his celebrated  15 surveys in 1792, to rob New Albion of its  16 almost mythical extent and to set its northern  17 limit at the 45th parallel."  18  19 So in 1763, my lords, what we have in northwestern  20 North America cannot possibly constitute possession  21 within the meaning of the principle of discovery that  22 applied between the European nations of that age.  And  23 therefore there was nothing, no title, no possession,  24 no sovereignty, no rights that the French could have  25 given to the British to northwestern North America by  26 the Treaty of Paris.  27 I just want to conclude this portion of my  28 argument by saying that as you read through the  29 judgment of the trial judge he deals with a lot of the  30 maps that were presented, and comments on the general  31 lack of knowledge illustrated on those maps of  32 northwestern North America, and in some cases the area  33 is marked terra incognita.  And my respectful  34 submission is, my lords, the significance of that is  35 that although there is some evidence that the  36 Europeans knew that there must have been some land  37 between west of the Rockies at that point and that  38 there was probably an ocean over there, so they knew  39 there was terra, nevertheless it was incognita.  It  40 was unexplored, undiscovered, unclaimed, unpossessed  41 by any European nation.  And that's the significance  42 of the phrase terra incognita.  Therefore it could not  43 have been the subject of any territorial treaty  44 between England and France.  45 LAMBERT, J.A.:  The Russian discoveries or the Russian voyages  46 down the coast of Alaska were after 1763.  47 MR. BELL:  There were, I believe, Russian voyages before that 1402  Submissions by Mr. Bell  1 date, although I might be confused on that point.  At  2 any rate, they didn't come down very far.  I'll have  3 to check just to get the precise details of that, my  4 lord, but the Russians didn't come down far enough to  5 claim anything that could be described as British  6 Columbia --  7 LAMBERT, J.A.:  So there is no relevance to any concern about  8 what the Russians --  9 MR. BELL:  The Russians don't play any part in this.  I'll leave  10 it there.  11 I'm going to be moving onto a new topic here.  12 This is the second proposition I want to advance in  13 support of the major proposition.  That is that the  14 wording of the Royal Proclamation necessarily implies  15 a western and northwestern boundary.  I read the  16 portion of the Royal Proclamation that deals with  17 this, specifically the hundred percent reserve, and  18 the territorial limits of that reserve we described  19 as:  20  21 "... all the Lands and Territories not included  22 within the Limits of Our said Three New  23 Governments, or within the Limits of the  24 Territory granted to the Hudson's Bay Company,  25 as also all the Lands and Territories lying to  26 the Westward of the Sources of the Rivers which  27 fall into the Sea from the West and North West  28 as aforesaid ..."  29  30 Now, just sitting there alone, it sounds like a  31 fairly generous western limit, but my submission is  32 that the Mississippi was the western boundary of this  33 reserve and Rupert's Land was the northern boundary,  34 and I'll explain why.  35 First I want to say that, my lords, these are  36 words of geographic limitation.  There was a  37 geographic scope to the Royal Proclamation, and that  38 geographic scope can be ascertained by reference to  39 the rivers which fall into the sea from the west and  40 north west as aforesaid.  The territory referred to  41 with all the lands and territories lying to the  42 westward of the sources of the rivers which fall into  43 the sea from the west and northwest as aforesaid.  I  44 refer to these as the reference rivers.  Our first  45 task is to determine which sea is referred to.  In  46 order to find out which rivers we are talking about,  47 we must first of all ascertain which sea is being 1403  Submissions by Mr. Bell  1 referred to.  2 If I could turn your lordships to Tab 11 again.  3 The quotes that we have been dealing with is from  4 paragraph V, and the phrase "as aforesaid", in my  5 respectful submission, refers back to paragraph U, to  6 the latter portion of that paragraph where it refers  7 to:  8  9 "... patents for any lands beyond the heads or  10 sources of any of the rivers which fall into  11 the Atlantic Ocean from the west and northwest  12 ..."  13  14 And my submission is that the phrase "as  15 aforesaid" refers to the rivers which fall into the  16 Atlantic Ocean from the west and northwest.  That's  17 what the word "sea" means in the next paragraph.  Sea  18 means the Atlantic Ocean.  19 At this point I would like to take out the map  20 under Tab 12.  My lords, this is the western half of  21 the Bowen map of 1763.  22 TAGGART, J.A.:  Tab again?  23 MR. BELL:  Tab 12.  The Bowen map is the map that probably was  24 referred to by the King and the Secretary of State in  25 the formulation of the Royal Proclamation.  26 I want your lordships to find the Mississippi  27 River flowing down from the north, about two-thirds of  28 the way across on the left.  I'm afraid you will have  29 to unfold the whole thing for this point.  If you will  30 focus for a moment on the Mississippi River on the  31 Gulf of Mexico.  32 In my respectful submission, my lords, is that the  33 reference rivers in the Royal Proclamation do not  34 include any of the rivers flowing into the Gulf of  35 Mexico, because the reserve created in the Royal  36 Proclamation refers to lands to the westward of the  37 sources of the rivers that fall into the sea.  And if  38 rivers flowing into the Gulf of Mexico were included,  39 then the reserve would extend into Louisiana, into New  40 Mexico, and possibly down into Mexico itself.  This,  41 of course, would be a violation of the clear  42 provisions of the treaty.  I am saying that England  43 could not assert any sovereignty west of the  44 Mississippi, which was the international boundary, and  45 therefore the rivers that fall into the sea cannot  46 include any of the rivers that fall into the Gulf of  47 Mexico, including the Mississippi. 1404  Submissions by Mr. Bell  1 These reference rivers that determine the  2 geographic scope of the Royal Proclamation do not  3 include the Mississippi, so that the Royal  4 Proclamation does not apply to lands lying to the  5 westward of the source of the Mississippi.  And this  6 is what the trial judge found.  7 While we have the map out, my lords, I would also  8 like to refer your lordships to a couple of other  9 features on the top half.  You will see just to the  10 right of the inset a dotted line.  It says -- it's  11 described as the "Southern Boundary of Hudson's Bay  12 Company territories settled by commissaries after the  13 Treaty of Utrecht."  This is a false statement.  It  14 was never settled, and that fact was even well-known  15 to the government of England.  16 It does, however, indicate the claim that the  17 Hudson's Bay Company was making following the Treaty  18 of Utrecht for the southern boundary of Rupert's Land,  19 and this is, in effect, the 49th parallel where you  20 see it stretching across until it hits the height of  21 land near Lake Abitibi.  22 You will also note that the dotted line cuts  23 through the watershed north of Lake Superior, so that  24 Lake Nipigon, what we know now as Lake Nipigon, is  25 north of the line.  26 Another feature I want to draw your lordships  27 attention to, while we've got the map out, is the  28 notation regarding the source of the Mississippi.  29 Again this is just to the right of the inset.  It's  30 very hard to read.  Its been copied so many times.  31 But I'll read it to your lordships.  32  33 "Mississippi River, its head very uncertain,  34 situated, according to the Indians, in very  35 marshy country about the 50th degree of  36 latitude."  37  38 And yet the source here is shown as being south of  39 the 49th.  So there is some confusion as to the source  40 of the Mississippi River and, as I will demonstrate  41 later, that's reflected in other sources, in other  42 maps.  43 HUTCHEON, J.A.:  Are you going to show us one river that comes  44 within the description of the treaty the Proclamation  45 gave?  46 MR. BELL:  Yes, my lord.  I would say that, to begin with, the  47 St. Lawrence and the St. Lawrence watershed is 1405  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  HUTCHEON,  MR. BELL:  HUTCHEON,  MR. BELL:  TAGGART,  MR. BELL:  TAGGART,  MR. BELL:  TAGGART,  MR. BELL:  TAGGART,  MR. BELL:  LAMBERT,  MR. BELL:  included, although there is an argument that perhaps  it might not be because it flows from the south --  from the southwest.  But I'm not going to pursue that  point.  Essentially it's all the rivers east of the  Appalachian divide.  J.A.:  The land is west of that?  That's right.  With the Mississippi River being the  western boundary.  J.A.:  Why do you say it's the western boundary?  Because it was an international boundary, my lord,  west of which Britain had no jurisdiction.  While I've got the map out, my lord, I just want  to point out that if, as it says here, the source of  the Mississippi lies in the 50th degree of latitude,  that would put it north of the dotted line, thereby  closing off the boundary of Rupert's Land.  The 50th  degree of latitude is the solid line running north of  the dotted line there.  But, as I say, there was a  good deal of confusion at the time as to the exact  location of the source of the Mississippi and of the  southern boundary of Rupert's Land.  J.A.:  That's the 50th, north of the dotted line?  Yes.  So there would be nothing west of the  Mississippi, nothing north of the boundary of Rupert's  Land which would be included within the hundred  percent reserve.  J.A.:  The next line of latitude, looking on the  right-hand edge of the chart, there is the word  "Iroquois".  What's that?  That's Quebec.  J.A.:  What's the number of that?  I assume that would be the 45th.  J.A.:  45?  Yes.  J.A.:  You can certainly see it ending right on the  left of the map.  There is one final feature I want to draw your  lordships' attention to.  Some time before I get to  this point, but I just want to make sure -- Mr.  Williams is pointing out to me that the number 45  appears on the very left-hand margin of the map, and  it appears to be the extension of that line that is  referred to as Iroquois on the right-hand side.  This next feature is going to be somewhat  difficult to find.  You will see again just to the  right of the inset the word "Nadussi", N-a-d-u-s-s-i,  that's in big print, Sioux.  Now, between the word 1406  Submissions by Mr. Bell  1 Nadussi and the word Sioux in small print is the word  2 "eastern".  If you follow that over about an inch  3 and-a-half, you'll see the word "Sioux" in the same  4 sized print.  So we put those together and we get  5 Eastern Sioux.  The significance of this point will  6 become apparent later on, but I just wanted to make  7 sure that your lordships were aware of this while we  8 have the map out.  9 This might be a convenient point to break.  10 THE REGISTRAR:  Order in court.  Court stands adjourned for a  11 short recess.  12  13 MORNING RECESS  14  15 THE REGISTRAR:  Order in court.  16 TAGGART, J.A.:  Yes, Mr. Bell.  17 MR. BELL:  Yes, my lords.  Carrying on with my speaking notes on  18 paragraph 2.6 at page 5.  I'm saying in 1763 the  19 Mississippi River and the southern boundary of  20 Rupert's Land were thought to intersect or be very  21 close to each other.  There was, however, considerable  22 confusion as to the location of the source of  23 Mississippi.  I might add as to the location of the  24 southern boundary of Rupert's Land.  25 I want to compound the confusion here, if I may,  26 by going to the source of the Mississippi.  I am  27 referring to paragraph 2.7 of the speaking notes.  28 Under the Treaty of Utrecht, 1707, and pursuant to the  29 subsequent negotiations between Britain and France,  30 Rupert's Land was restored to the Hudson's Bay  31 Company.  Although the exact southern boundary of  32 Rupert's Land was never settled between the English  33 and the French, it was asserted by the Hudson's Bay  34 Company in the area north of the Mississippi to be at  35 the 49th parallel.  Now, this position was reflected  36 on the Bowen map, which is Tab 12 that we just looked  37 at.  Other versions of the boundary show it following  38 the height of land.  39 I want to refer your lordships at this point to  40 Tab 20.  I am referring to the Mitchell map of 1755.  41 And we see again here is another inset on the upper  42 left corner, and coming out of the right-hand side of  43 that inset is a dotted line.  As you follow it across,  44 you see it described as the bounds of Hudson's Bay by  45 the Treaty of Utrecht.  And then further on it says  46 "lands height".  You will note that this dotted line  47 goes north of Lake Nipigon and follows out just north 1407  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  LAMBERT,  MR. BELL  LAMBERT,  MR. BELL  of Lake of The Woods.  So this is another version of  the southern boundary of Rupert's Land that was  current in that era.  I'll take your lordships at some point to the  grant that was given to the Hudson's Bay Company which  describes the territory that it covers, but that's  essentially the basis for using a height of land as  the southern boundary.  The grant to the Hudson's Bay  Company was basically the Hudson's Bay watershed,  which, of course, is bound on the south by the St.  Lawrence watershed, at least in the vicinity of Lake  Superior.  While we got the map out I will also show your  lordships another feature.  In the lower left quadrant  you will see the river Mississippi here, and to the  north of the Mississippi River the words "Eastern  Sioux" and to the west of the Mississippi River  "Western Sioux".  And there is a notation on the far  left side between parallels 46 and 47.  I hope I can  read it here.  It says:  "The head of the Mississippi  is not yet known.  It is supposed to arise about the  50th degree of latitude and western bounds of this  ..."  I can't make out that word.  Something "...  North America extends right as far westward as does  the  ..."  I'm afraid I'm lost on that.  J.A.:  "As it does to the east".  I think it's westward.  J.A. :  No.  "Extends as far westward as it does to the  eastward by all accounts."  By all accounts.  Very good, my lord.  Thank you.  Again this is the map that was in circulation in  Britain just prior to the signing of the Treaty of  Paris.  There was also some references in the transcripts,  which I will refer your lordships to at Tabs 14 and  15.  At Tab 14, this is Dr. Greenwood, at about line  10 he says:  "Also I would point out the southern boundary of  the Hudson's Bay Company territories simply as  one more example of another version of that  southern boundary which followed the heights of  land.  It's found in the Mitchell map.  There  are two basic versions as of 1873, circa 1873.  One runs along the 49th parallel as in Bowen,  the other follows the supposed heights of  land. 1408  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  TAGGART,  MR. BELL  WALLACE,  MR. BELL  WALLACE,  MR. BELL  TAGGART,  MR. BELL  So there are two versions of the southern boundary  of Rupert's Land.  Now, before I get into any more detail on Rupert's  Land, I just want to make one further reference to the  sources of the Mississippi.  That will be under Tab  27 -- I'm sorry, Tab 28.  This again is Dr. Farley.  Dr. Farley examined many of the maps of the era, and  if you turn to page 23 of his summary under Tab 28,  page 23, he sets out a list of the maps that he  examined.  And he shows in the right-hand column the  source of the most northerly tributary of the  Mississippi River as mapped.  And you will see that  there is a great variety of sources shown on the maps  of the era.  The point being that there was  considerable confusion as to the source of the  Mississippi at that time, and with good reason.  Finally, one more map I would like to refer your  lordships to.  It's not in the -- in my volume.  It's  in the appellants' red book, which you should have  handy there.  Appendix A.  This is the Bellin map  under Tab 29.  I would like your lordships to refer to  the western half of the Bellin map.  We've got that  out.  If you could then turn back to Tab 28 in W3.  J.A.:  Tab?  Tab 28, page 21, the first page in the tab.  Looking  at the map for the moment.  If you could find the  Mississippi River.  You will see at about the 100th  degree of longitude coming down it intersects with a  body of water called Lac Rouge.  It's at about just  north of the intersection of the 45th parallel and the  100th degree longitude on the map.  It's just north of  that quadrant, Lac Rouge.  Does everybody have it?  J.A.:  I have got it, but why have I got it?  I am coming to that, my lord.  J.A.:  Sorry.  You will note that the Mississippi River seems to  flow out of Lac Rouge, according to Bellin.  You will  also note another river flowing from Lac Rouge to the  northwest to Lake Winnipeg.  Apparently across the  height of land which is indicated by the dotted line.  Now, Dr. Farley had something to say about this, and I  would like to refer to Tab 28.  J.A.:  Hard to have a height of land in the middle of a  lake, isn't it?  Somewhat difficult.  He says at page 21. 1409  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  TAGGART,  MR. BELL  WALLACE,  MR. BELL  WALLACE,  MR. BELL  "J.N. Bellin's Carte de L'Amerique  Septentrionale of 1755 shows little improvement  over that of De L'Isle (see Map 14).  Indeed,  the confusion among cartographers regarding the  region west of Lake Superior is made more  evident because Bellin included on his map  sheet more area to the west about which  geographic uncertainty and ignorance was even  more profound.  His compilation does, however,  show a headwater of the Mississippi arising in  a small lake about 46 degrees north, 98 degrees  west. "  And you will see that is just below Lac Rouge,  there is a small lake there, and notes "Sources du  Mississippi" on the river.  And he goes on:  "Labelled 'Sources du Mississippi' this  headwater is shown to flow eastward to the main  stream rather than arcing southward.  By means  of a directional arrow the cartographer shows  the main stream itself flowing southeastward  from a relatively large Lac Rouge.  The latter  also drains northwesterly via the Riviere Rouge  to a graphically-primitive feature we recognize  today as Lake Winnipeg.  To confound confusion,  a dotted line representing the height of land  crosses Lac Rouge.  Bellin, true to his roots  in scientific cartography appended the honest  label 'Riviere Rouge dont le Cours est peu  connu'.  In the zone northwest of Lake Superior  is another factual statement 'Grande Etendue de  Pays entirement Inconnue'.  For all of the  cartographic advances embodied in this fine  product, almost certainly the best French map  of America in its time, great differences  between perception and reality are evident."  I think we can put away Bellin's map.  J.A.:  It came from?  It came from the red book, Appendix A, Tab 29.  J.A.:  What was the colour legend supposed to depict,  the red, the blue and the yellow?  I think they are supposed to depict the French and  English claims according to the French perception.  J.A.:  I was wondering, only French and English --  And Spanish as well.  According to Mr. Rush. 1410  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  WALLACE,  MR. BELL  WALLACE,  MR. BELL  J.A.:  Is that the red, the Spanish?  I am going to have to ask Mr. Rush for some help on  this question, my lord.  Apparently, my lord, the red  is Spanish, the blue is French and the yellow is  English.  J.A.:  Right.  Now, I would like to take your lordships to Tab 13.  This is what it's supposed to look like.  Now, my  lords, if you can identify the Mississippi River  there, you will see that near its source it arcs  around from the east towards the west and ends at a  small lake.  That's Lake Itasca, I-t-a-s-c-a, and it  lies in modern day Minnesota.  The map also depicts  Lake Winnipeg, the large lake in Manitoba there, and  flowing north into Lake Winnipeg, of course, is the  Red River, and it has its source in South Dakota.  You  will also notice a lake just to the north of the  source of the Mississippi.  That's Red Lake.  It's not  shown on here, but Red Lake is connected to the Red  River by the Red Lake River.  So, of course, Red Lake  lies within the watershed of Hudson's Bay, although it  is very close to the source of the Mississippi.  The  watershed -- the height of land between the  Mississippi River and the Hudson's Bay watershed would  be drawn between Lake Itasca and Red Lake, and of  course would dip down to divide the Red River from the  territory east of it.  Apparently, my lords, it's true, it is very marshy  country, and that accounts for the difficulties that  the cartographers had in identifying the height of  land.  It was so flat.  We can put this map away too.  I don't intend to  refer to it.  Now, if I could refer your lordships to Tab 17.  I  want to now discuss the southern boundary of Rupert's  Land.  That's not correct.  Excuse me.  I'm just going  to get my tabs straightened out here.  Tab 34, my  lords.  This is an article, and I'm citing it just  because it reproduces an extract from the Charter of  the Hudson's Bay Company.  It says:  "On May 2nd, 1670, Charles II granted unto the  Governor and Company of Adventurers Trading  into Hudson Bay:  ... the sole Trade and Commerce of all those  Seas Streightes Bayes Rivers Lakes Creakes and  Soundes in whatsoever Latitude they shall be 1411  Submissions by Mr. Bell  1 that lie within the entrance of the Streightes  2 commonly called Hudsons Streightes together  3 with all the Landes and Territories upon the  4 Countryes Coastes and confynes of the Seas  5 Bayes ..."  6  7 This is Tab 34.  8  9 "... Seas Bayes Lakes Rivers Creakes and Soundes  10 aforesaid that are not already actually  11 possessed by or granted to any of our Subjectes  12 or possessed by the Subjectes of any other  13 Christian Prince or State ..."  14  15 And it goes on.  Now, this author, if you go over  16 the page, page 139, about halfway down says:  17  18 "The charter was a fertile source of dispute,  19 particularly between 1763 and 1870.  Among the  20 many issues were the following:  21 (2)  Did the Charter grant proprietary rights  22 over just the Hudson Bay shore, or to all the  23 land lying between the rivers and lakes flowing  24 into Hudson Bay, a vast area stretching as far  25 west as the headwaters of the North and South  26 Saskatchewan Rivers and as far south as the  27 headwaters of the Red River (in what is now  28 North and South Dakota)?"  29  30 And he provides an answer to that question over  31 the page.  He says:  32  33 "Of the questions asked above, only (1), (2),  34 and (4) are relevant to the above areas.  The  35 question of the validity of the Charter's  36 proprietary grant has been much discussed, but  37 the preponderance of authority would seem to  38 require that the answer to the above three  39 questions be in the positive."  40  41 So we have again a Charter granted in terms of a  42 watershed.  You will recall, my lords, that the Bowen  43 map showed the claims of the Hudson's Bay Company  44 extending to the 49th parallel south of Lake Nipigon.  45 This would be an aggressive interpretation of the  46 bounds of Rupert's Land because it would extend beyond  47 the southern height of land defining the Hudson's Bay 1412  Submissions by Mr. Bell  1 watershed.  Indeed, Hudson's Bay Company asserted the  2 watershed from time to time as its boundary.  3 And if you will turn to Tab 17 now, at page 186.  4 In 1811 the Hudson's Bay Company granted land within  5 Rupert's Land to Lord Selkirk for the colony of  6 Assiniboia.  And the territory granted is outlined in  7 the dark line on this map.  You will note that the  8 large lake at the top is Lake Winnipeg, and of course  9 the river flowing north of Lake Winnipeg would be the  10 Red River.  You will note that the grant extends down  11 below the 49th parallel encompassing the Red River  12 into actually what was American territory at that  13 time.  This is by way of simply illustrating that  14 there were various versions of the southern boundary  15 of Rupert's Land which continued to be in doubt for  16 many years following the Treaty of Paris in 1763 on  17 the Royal Proclamation.  The practice of granting  18 territory and describing the bounds by means of  19 watersheds and heights of land is the point that I  20 want to emphasize here.  This is a point that the  21 Privy Council has also commented on.  22 If your lordships will turn to Tab 35, an extract  23 from the Labrador Boundary case, at page 415.  Here  24 they are talking, of course, about Labrador and its  25 boundary.  At the bottom of page 415 the Privy Council  26 says:  27  28 "Further, the use of the watershed of 'height of  29 land' as a boundary was undoubtedly familiar in  30 British North America at the period in  31 question, and it is shown as a boundary in many  32 of the maps of that time.  Thus, in some of the  33 pre-annexation maps of French Canada which have  34 been produced (Sanson 1656, Coronelli 1689, and  35 Mortier 1693), the watershed running westward  36 from Cape Charles is shown as the boundary  37 between Labrador (or Nouvelle Bretagne) and  38 Nouvelle France.  In Bowen's map of 1763 the  39 southern boundary of Labrador appears to run  40 along the fifty-second north parallel of  41 latitude, roughly corresponding with the same  42 line of watershed; and the same feature is  43 reproduced in Rocque's map of about the same  44 date.  In Bellin's map of 1755 the 'hauteur des  45 terres' is indicated as the boundary between  46 the possessions of the Hudson's Bay Co. and the  47 territory (then in French ownership) of 1413  Submissions by Mr. Bell  1 Labrador or Nouvelle Bretagne; and the same  2 observation applies to Gibson's map of 1763.  3 In the Proclamation of 1763 the Province of  4 Quebec thereby constituted was defined as  5 bounded on the south by 'the highlands which  6 divide the rivers that empty themselves into  7 the said River St. Lawrence from those which  8 flow into the sea.'  It may well be, therefore,  9 that in alloting to Newfoundland the 'coast' of  10 Labrador the framers of the documents of 1763  11 had in mind as a boundary the 'height of land'  12 from which the rivers ran down to that shore -  13 though without any accurate conception of the  14 distance of that boundary from the sea."  15  16 The point here, my lord, is that in the 18th  17 century a height of land was considered to be a clear  18 boundary, a clear dividing mark for the purposes of  19 setting geographic boundaries around territories.  20 I also want to refer your lordships to pages 419  21 to 421 of the Labrador Boundary case, while we've got  22 it out.  Now, obviously, my lords, this was a dispute  23 between the Dominion of Canada and Newfoundland over  24 the boundary between the two in Labrador.  And one of  25 the arguments of the Dominion was that the interior of  26 the peninsula, the Labrador peninsula, was excluded  27 from the territory of Newfoundland, and the argument  28 is summarized here at page 419.  In the middle  29 paragraph it says:  30  31 "The principle arguments urged on behalf of the  32 Dominion were based on the terms of the  33 Proclamation of 1763, and particularly (1) on  34 the declared purpose for which the government  35 of the coast of Labrador was entrusted to  36 Newfoundland and (2) on the provision made in  37 the Proclamation for the Indians residing in  38 the hinterland."  39  40 It was argued that the Indian territory extended  41 to the interior of the Labrador peninsula, thereby  42 limiting the territory of Newfoundland.  And in  43 dealing with this argument the Privy Council, over on  44 page 420, in the last complete paragraph says:  45  46 "But it was pointed out that the Proclamation of  47 1763 contained a declaration (quoted above) 1414  Submissions by Mr. Bell  1 reserving under the sovereignity, protection  2 and dominion of the King for the use of the  3 Indians, the lands and territories not included  4 within the limits of the three new Governments  5 of Quebec, East Florida and West Florida, or  6 within the limits of the territory granted to  7 the Hudson's Bay Co.' and it was argued that  8 this reservation applied to the territory  9 occupied by the Indian tribes who were settled  10 between the Atlantic seaboard of Labrador and  11 the watershed, and was evidence that this  12 territory was not intended to be included in  13 the 'coast' granted to Newfoundland."  14  15 Over the page.  16  17 "The Indians living in this territory consisted  18 of Nascopies who lived north of the Hamilton  19 River, and Montagnais who ranged to the south  20 of that river; and if it were established that  21 those tribes were intended to be included among  22 the Indians in whose favour the reservation was  2 3 made, the argument would undoubtedly have much  24 force.  But it does not appear to their  25 Lordships to be made out that the declaration  26 in question referred to the lands occupied by  27 these two tribes.  The reservation is confined  28 to lands occupied by 'the said Indians' - that  29 is to say, those who are referred to in the  30 next preceding paragraph of the Proclamation as  31 nations or tribes of Indians with whom The King  32 was connected and who lived under his  33 protectipn; and it appears from the reort of  34 the Lords of Trade, dated June 8, 1763, on  35 which the Proclamation was based, that the  36 Indians so described consisted of those tribes  37 of the Six Nations who were settled round the  38 great lakes or beyond the sources of the rivers  39 which fell into the River St. Lawrence from the  40 north.  This description would not include  41 Indians residing beyond the sources of the  42 rivers which flow into the Gulf of St. Lawrence  43 or into the Atlantic.  It is true that the  44 exception of lands and territories included in  45 the three new Governments or the Hudson's Bay  46 territory does not apply to lands in the  47 'coast' annexed to Newfoundland; but if the 1415  Submissions by Mr. Bell  1 Indians in the 'coast' territory were not  2 included in 'the said Indians' it was  3 unnecessary to except them.  Nor would the  4 lands occupied by these Indian fall within the  5 general description contained within the  6 Proclamation as 'lands and territories lying to  7 the westward of the sources of the rivers which  8 fall into the sea from the west and  9 north-west."  10  11 Of course this all has to do with the Labrador  12 peninsula, my lords.  The point that I am making here,  13 simply, is that the Privy Council has given effect to  14 the geographic limits of the Royal Proclamation as  15 defined by the heights of land and the rivers flowing  16 into the Atlantic.  17 My lords, if I could return to my speaking notes  18 at page 7, paragraph 2.12.  Therefore, the wording of  19 the Royal Proclamation itself, when construed in the  20 light of the Treaty of Paris and the boundaries of  21 Rupert's Land, sets out definite boundaries on the  22 west and northwest ascertainable by reference to the  23 Mississippi River and either the 49th parallel or  24 major water sheds, and particularly the Hudson's Bay  25 watershed.  26 In the next paragraph, starting in the second  27 sentence I say the boundaries mentioned in it were  28 sufficiently precise to provide guidance to those who  29 needed to know at the time, and they were capable of  30 exact delineation when time permitted and the occasion  31 required it in the future.  The eastern boundary, or  32 Proclamation line, was negotiated soon afterward; it  33 was obviously the higher priority.  However, the  34 American revolution took the responsibility for  35 delineating the precise location of the western  36 boundary out of the hands of the British before they  37 could undertake it.  38 A question might arise, my lord, as to why there  39 isn't a more precise description of the boundary in  40 the Royal Proclamation.  I just want to remind your  41 lordships that the Royal Proclamation was rushed  42 through after news of impending Indian uprisings in  43 North America became known in London.  Indeed  44 Pontiac's rebellion was going on at the time that the  45 Royal Proclamation was being drafted.  In my  46 respectful submission there is therefore no time for  47 the drafters of the Royal Proclamation to come up with 1416  Submissions by Mr. Bell  1 a delineated description of the western boundary, and  2 so they employed the usual devices that were employed  3 in those times and describe it in terms of a major  4 geographic feature, the Mississippi River and  5 watersheds.  It was nonetheless a fixed limit for all  6 that.  7 Just because there was uncertainty as to the exact  8 point of the junction of the Mississippi and the  9 southern boundary of Rupert's Land does not mean that  10 the boundary was indefinite or that there was no  11 boundary; in other words, there isn't a gap in the  12 northwest corner of the territory through which Part  13 IV of the Proclamation could balloon out and cover  14 northwestern parts of North America.  15 I am now going to move to the discussion of the  16 extrinsic evidence which relates to the question of  17 the boundary.  The extrinsic evidence supports the  18 interpretation of the Royal Proclamation itself as  19 having a definite western boundary.  20 Just by way of introduction, the Royal  21 Proclamation was prepared by essentially two groups,  22 the political authorities in the Privy Council led by  23 the Secretary of State, Egremont, and his successor  24 Lord Halifax, and they would be the advisors to The  25 King in the Privy Council.  The other group was the  26 Lords of Trade, as they were called, responsible for  27 policy matters relating to the colonies.  And this  28 small group had an exchange of correspondence which  29 led up to the drafting of the Proclamation.  A number  30 of documents were produced discussing their ideas, and  31 I want to refer to some of them now.  32 Now, the process was initiated by a letter from  33 Egremont to the Boards of Trade, which I will show  34 your lordships in a few moments, basically asking for  35 their advice on how to deal with the immediate  36 acquired territories of North America.  And a draft of  37 the response was prepared by the secretary of the  38 Board of Trade, Mr. Pownall, and extracts from that  39 draft called a sketch are at Tab 21.  At page 260 of  40 the sketch.  41 TAGGART, J.A.:  I'm sorry, Tab 21?  42 MR. BELL:  Tab 21, my lords.  Perhaps I should start at 259,  43 just so the context is clear.  Starting at the last  44 paragraph on page 259:  45  46 "Upon this ground therefore, and upon these  47 facts and principles, we do not hesitate to 1417  Submissions by Mr. Bell  1 declare it to be our opinion, that, not only in  2 the establishment of the new colonies, but in  3 the determination of what may be proper to be  4 done in respect to the old ones, in so far as  5 that consideration applies itself to extention  6 of settlements and Indian interests, the limits  7 of their settlements and jurisdiction should  8 not, for the present, extend beyond the sources  9 of those rivers and waters which discharge  10 themselves directly into the Atlantic Ocean on  11 the one side, and the Gulf of Mexico on the  12 other; and that all the country lying between  13 the ridge of the Apalachian mountains and the  14 river Mississippi as low down to the Gulf of  15 Mexico as the settlements and claims of the  16 Indians extend, as also all the country lying  17 around the Great Lakes as far as the heads of  18 every river or water that falls into them,  19 should be considered as lands belonging to the  20 Indians, the dominion of which to be protected  21 for them by forts and military establishments  22 in proper places, and with full liberty to all  23 your Majesty's subjects in general to trade  24 with the said Indians upon some general plan."  25  26 So we have an early conception in the process of  27 the boundary.  Definitely bounded on the west by the  28 Mississippi and on the east by the ridge of the  29 Appalachian Mountains, and on the north it would  30 include the Great Lakes watershed, and of course north  31 of the Great Lakes watershed is Rupert's Land.  32 Now, referring back to Tab 18.  This is the report  33 of the Lords of Trade to Egremont dated the 8th of  34 June, 1763.  At page 102 they discuss the question of  35 the boundaries of the Indian country, and they say:  36  37 "And we apprehend that no such delay can be  38 attended with very material inconvenience,  39 since, if Your Majesty shall be pleased to  40 adopt the general proposition of leaving a  41 large Tract of Country round the Great Lakes as  42 an Indian Country, open to Trade, but not to  43 Grants and Settlements, the Limits of Such  44 Territory will be sufficiently ascertained by  45 the Bounds to be given to the Governors of  46 Canada and Florida on the North and South, and  47 the Mississippi on the West; and by the strict 1418  Submissions by Mr. Bell  1 Directions to be given to Your Majesty's  2 several Governors of Your ancient Colonies for  3 preventing their making any new grants of lands  4 beyond certain fixed limits to be laid down in  5 the Instructions for that purpose."  6  7 So here again we have another development of the  8 boundary.  9 And at Tab 19 we have a reply from Lord Egremont,  10 the Secretary of State, at page 151.  I apologize.  11 This is Lords of Trade to Egremont, a subsequent  12 report after another exchange of correspondence.  And  13 he says:  14  15 "In Obedience to Your Majesty's Commands  16 contained in a Letter from the Earl of  17 Egremont, dated the 14th of July last  18 signifying to Us Your Majesty's Most gracious  19 Approbation of Our Idea, that that large Tract  20 of Country bounded by the Mississippi and the  21 Limits of the Hudson Bay Company on the one  22 hand and on the other by the Limits of Canada,  23 East and West Florida and His Majesty's ancient  24 Colonies ..."  25  26 So we see that by this date the boundaries had  27 ripened to include the Hudson's Bay Company on the  28 north.  29 Now, the letter they are referring to is the  30 letter from Egremont dated the 14th of July, and I'll  31 refer your lordships to that now.  It's at Tab 23.  32 This is a discussion of the problems that an Indian  33 territory might create in terms of fugitives.  At any  34 rate, he discusses the boundaries.  A third of the way  35 or halfway down the page he says:  36  37 "The King therefore is of Opinion, that, in the  38 Commission for the Governor of Canada, all the  39 Lakes, Ontario, Erie, Huron, Michigan, and  40 Superior, should be included, with all the  41 Country, as far north and west as the limits of  42 the Hudson's Bay Company and the Mississippi."  43  44 This is the territory which they are concerned  45 about as to the problem with fugitives.  So we have  46 both in the Privy Council and in the Lords of Trade a  47 conception of the boundary of the Indian country as 1419  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  being the Mississippi on the west and Hudson's Bay  Company territories on the north.  TAGGART, J.A.:  What was the western boundary of the Hudson's  Bay lands?  MR. BELL: They were unascertained at that time, but if you take  the watershed, they would extend as far west as the  South Saskatchewan River and the foothills of the  Rockies.  There is some evidence that the Hudson's Bay  Company claimed that it extended all the way to the  Pacific, and it's actually in the material here.  I  haven't referred to it.  TAGGART, J.A.:  What's the southern boundary?  MR. BELL:  Again the watershed of the Hudson's Bay Company  would -- well, its most southerly point would be the  source of the Red River in South Dakota, and in 1763  the Hudson's Bay Company didn't know that.  That's why  they made a mistake in asserting the 49th parallel.  At any rate, I see that it's close to 12:30, my  lords.  TAGGART, J.A.:  All right.  2 o'clock.  NOON RECESS  I HEREBY CERTIFY THE FOREGOING TO  BE A TRUE AND ACCURATE TRANSCRIPT  OF THE PROCEEDINGS TRANSCRIBED TO  THE BEST OF MY SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 1420  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (NOON RECESS)  THE REGISTRAR  TAGGART, J.A.  MR. BELL  LAMBERT,  MR. BELL:  LAMBERT,  Order in court.  Yes, Mr. Bell.  Thank you, My Lords.  Perhaps I should take this  opportunity to offer an answer to Mr. Justice Lambert  to the question he asked this morning about what  difference it would make to this case if the Royal  Proclamation applied.  And from the point of view of  the Province, it could make a significance difference.  It would give to the Appellants an opportunity to  argue that the -- that unceded lands in British  Columbia, including the territory and perhaps most of  the province, are lands reserved for Indians under  Section 91(24) of the British North America Act.  Not  that the Province would accede to that argument, but  there is some authority which they could call in  support.  In particular, the judgment of the Privy  Council in the St. Catherine's Milling case in which  it was held that the term "lands reserved for Indians"  refers to lands reserved under any terms or conditions  for the use of Indians.  And I believe that the Privy  Council made specific reference to the Royal  Proclamation in that connection.  The Province, of course, is concerned that should  that happen there could be significant interference  with its ability to legislate in respect of large  areas of the province.  Just the exact extent and  nature of such a difference would, of course, be the  subject of argument, but it is an argument that the  Province would prefer not to meet.  There is another argument that might become  available to the Appellants concerning the issue of  consent.  The Royal Proclamation, it could be argued,  does support a position that consent to the taking of  lands occupied by the Indians is required.  Again, the  Province would dispute such an argument.  And it  would, indeed, argue that there is wording in the  Proclamation which suggests that consent is not  required.  But if it were held that the Royal  Proclamation did apply in British Columbia, then those  two consequences are certainly within contemplation,  reasonable contemplation.  J.A.:  If it doesn't apply directly geographically and  in its terms --  Yes.  J.A.:  -- then its remaining significance is as a 1421  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. BELL  LAMBERT,  MR. BELL  LAMBERT,  MR. BELL  LAMBERT,  MR. BELL  LAMBERT,  MR. BELL  LAMBERT,  MR. BELL  statement of international law, perhaps, and English  municipal law and certainly British policy in 1763.  And it's more than just a declaration.  It has the  force of a legislative enactment and so is very  instructive about the course of development and  understanding of aboriginal rights.  But that's -- and  you wouldn't dispute anything about that?  No.  That's all right, yes.  J.A.:  Your essential argument is directed to these two  parts?  Yes.  That's correct, my lord.  J.A.:  Good.  I understand.  It is instructive as to relations between the Crown  and the Indians, but it is not legally binding --  J.A.:  Yes.  -- in British Columbia.  J.A.:  Yes.  And, indeed, the Province has said that it wants to  make treaties with the Indian groups in the province.  And I suppose in that sense it could be said to be  acting within the spirit of the Proclamation.  J.A.:  Well, thank you.  That puts my mind to rest.  Now, if I could carry on with my argument, I am at  paragraph III.3 in my speaking notes.  And this refers  to the extrinsic evidence that is available to  interpret the meaning of the Royal Proclamation and,  in particular, whether it has a western boundary or  not.  And there was no policy reason to extend Part IV  of the Royal Proclamation beyond the Mississippi.  Indeed, at the time the Proclamation was being  drafted relations with the Indians in the western part  west of the colonies were seen primarily as part of  the security concern for British North America.  I want to refer your lordships to tab 22.  Now,  this is a letter from Egremont, Lord Egremont to the  Lords of Trade.  This is the letter that initiated the  discussions with the Lords of Trade.  And he is asking  for their opinion on a number of questions.  And if  you look over at page 94, in the centre of the page he  says :  "The Questions which relates to North America  in general, are,  1.  What New Governments should be established  and what Form should be adopted for such new  Governments and where the Capital, or Residence  of each Governor should be fixed? 1422  Submissions by Mr. Bell  1 2.  What Military Establishment will be  2 sufficient?  What new Forts should be erected?  3 and which, if any, may it be expedient to  4 demolish?  5 3.  In what Mode least Burdensome and most  6 palatable to the Colonies can they contribute  7 towards the Support of the Additional Expence,  8 which must attend their Civil and Military  9 Establishment, upon the Arrangement which Your  10 Lordships shall propose?"  11  12 And then in the next paragraph he offers some comments  13 regarding the first question.  And he continues on a  14 couple of paragraphs later to deal with the second  15 question, and he says:  16  17 "The Second Question, which relates to the  18 Security of North America seems to include Two  19 Objects to be provided for:  The first is, the  20 Security of the whole against any European  21 Power; The next is the Preservation of the  22 internal Peace and Tranquility of the Country  23 against any indian Disturbances - Of those Two  24 Objects, the latter appears to call more  25 immediately for such Regulations and  26 Precautions as Your Lordships shall think  27 proper to suggest, etc."  28  29 Now, before I go on to read the next paragraph, Lord  30 Egremont and Privy Council were concerned that they  31 got the right kind of advice from the Lords of Trade,  32 so they made some suggestions as to what the approach  33 ought to be.  And this is one of them.  He says:  34  35 "Tho' in order to succeed effectually in this  36 Point, it may become necessary to erect some  37 Forts in the Indian Country, with their  38 Consent, yet His Majesty's Justice and  39 Moderation inclines Him to adopt the more  40 eligible Method of conciliating the Minds of  41 the Indians by the Mildness of His Government,  42 by 'protecting' their Persons and Property and  43 securing to them all the Possessions, Rights  44 and Privileges they have hitherto enjoyed and  45 are entitled to, most cautiously guarding  46 against any Invasion or Occupation of their  47 Hunting Lands, the Possession of which is to be 1423  Submissions by Mr. Bell  1 acquired by fair Purchase only."  2  3 So the notion about protecting a territory for the  4 Indians comes up in the context of the security  5 concern for peace and tranquility in British North  6 America.  And the trial judge had some comments about  7 this, as well.  I would ask your lordships to turn to  8 tab 3 at pages 220.  You can see -- well, the trial  9 judge at the bottom of 220 starting:  "On the 5th of  10 May 1763", he basically repeats the passage from  11 Egremont's letter that I have just quoted.  He carries  12 on again on the next page continuing that quote.  And  13 he says:  14  15 "It is not difficult to recognize the foregoing  16 as one of the sources of some of the thoughts  17 and language in the world Royal Proclamation."  18  19 And carrying on with my speaking notes, paragraph  20 III.4 that the focus of Part IV of the Royal  21 Proclamation is primarily a security concern is  22 further demonstrated by the proposed "Plan for the  23 future management of Indian Affairs".  And I want to  24 review what the trial judge had to say about that.  He  25 talks about this on page 229 of his judgment.  There  26 is a rather lengthy quote here, but I think it is  27 worth repeating so that your lordships can have the  28 full flavour of what was in the minds of the officials  2 9 in London at the time.  30 Starting at the second paragraph on 229:  31  32 "Shortly before the date of the Royal  33 Proclamation, Lord Halifax, who succeeded  34 Egremont as Secretary of State for the  35 Colonies, requested the Lords of Trade to  36 prepare a plan for Indian trade in North  37 America.  The board sent a draft plan to Sir  38 William Johnson..."  39  40 Now, My Lords, Sir William Johnson was the  41 Superintendent of Indian Affairs in North America.  42  43 "...presumably for his consideration, but the  44 plan was never implemented because of  45 objections from traders about its  46 impracticability.  For example, the plan  47 required the Indians to come to the forts in 1424  Submissions by Mr. Bell  1 order to trade, while it was often found  2 necessary for the traders to go to the Indians.  3 Ad hoc arrangements were made in the field, but  4 the idea of a plan was revived after the  5 extension of the Quebec Act of 1774, which gave  6 Quebec control of the fur trade and exempted  7 that province from the operation of the Royal  8 Proclamation.  9 In 1777 a Plan was enacted in Quebec by  10 Ordinance which included the following terms:  11 (a) 1.  That the Trade and Commerce with the  12 several Tribes of Indians in North America  13 under the protection of His Majesty shall be  14 free and open to all His Majesty's subjects,  15 under the several Regulations and Restrictions  16 hereafter mentioned so as not to interfere with  17 the Charter of the Hudson's Bay Company.  18 (b) 2.  That for the better Regulation of this  19 Trade, and the Management of Indian Affairs in  20 general, the British Dominions in North America  21 be divided into two Districts, to comprehend  22 and include the several Tribes mentioned in the  23 annexed Lists A and B."  24  25 Now, the lists of A and B are in a tab, and I am just  26 turning it up here.  Yes, it is tab 30.  This is the  27 cover page and the last page of the draft plan which  28 was never implemented, but the lists are -- I'm sorry,  29 is that right?  Excuse me.  This is the draft plan.  30 And the lists of Indians A and B are those listed on  31 page 437.  That's what the Chief Justice is referring  32 to.  "Lists A and B", he says, I am reading on on page  33 229:  34  35 "...includes 54 tribes, 12 in the Southern  36 District and 42 in the Northern District.  Of  37 those in the Northern District, all but the  38 SiouX lived East of the Mississippi.  Many  39 contrary maps showed the Sioux living on both  40 sides of that river, and a report dated 13th  41 August 1763 Sir William Johnson identified them  42 as residing westward of the Mississippi, but of  43 unknown numbers and much addicted to  44 'wandering'.  He also said they 'are little  45 known to us' but they had promised to send  46 deputies to him 'in the spring'."  47 1425  Submissions by Mr. Bell  1 And over the page:  2  3 "None of the tribes living in Rupert's Land (or  4 on the Canadian prairies or in British  5 Columbia) were mentioned in the Lists.  In 1764  6 Sir William Johnson, in a letter to Thomas  7 Gage, referred to the 'Christeneaux' (Crees)  8 north-west of Lake Superior who 'had no hand in  9 the War, [and] are rather remote to give us  10                   much trouble'."  11  12 And the point here, my lord, is that all of the tribes  13 listed, whose good graces the British wished to  14 cultivate and trade with, reside east of the  15 Mississippi.  And the inference is that only those  16 tribes residing east of the Mississippi would be in a  17 position to give the British settlement in trade any  18 security concerns.  And that's why tribes in Rupert's  19 Land were not listed.  To this point, we are on  20 references where the eastern and western Sioui comes  21 in.  The Sioui, although they were known to straddle  22 the Mississippi, were seen by both the French and the  23 British as two distinct groups, one in the east and  24 one in the west of the Mississippi.  25 Now, another policy concern of the British at this  26 time was to advance the mercantilist policy of trade.  27 I don't know how much your lordships remember of  28 Canadian history, but mercantilism was a policy by  29 which Britain sought to create markets for its  30 manufactured goods in the colonies.  The colonies  31 would, in turn, provide raw materials and agricultural  32 products to Britain.  It was, therefore, a concern of  33 the British who were in support of this policy that  34 the settlements and the colonies not extend too far to  35 the west.  36 And you will find in the material discussions of  37 the economics of settlers who live in the interior and  38 how much it would cost them to bring their goods to  39 port, and at what point it might be a deterrent to  40 purchasing British manufactures so that they would be  41 provided with some incentive to start manufacturing on  42 their own in the colonies.  43 At any rate, the mercantilist policy was the  44 dominant focus of the Royal Proclamation.  And it will  45 be clear from the supporting documents that I am going  46 to refer your lordships to.  In addition to that,  47 there is a general policy against westward expansion 1426  Submissions by Mr. Bell  1 which continued after the Royal Proclamation.  And I  2 will refer your lordships to some of those documents  3 as well.  4 But, first of all, I want to start with the trial  5 judgment again at tab 3 at page 219.  And here the  6 trial judge summarizes the main evidence on this point  7 starting at the last paragraph on 219.  He says:  8  9 "On 6th December of 1762..."  10  11 This would be the year before the Royal Proclamation.  12  13 "...Henry Ellis, Governor Designate of Nova  14 Scotia and trusted advisor to the Earl of  15 Egremont, Secretary of State for the Southern  16 District, submitted a lengthy report on  17 previous relations between the colonies and  18 some southern tribes with which he was familiar  19 in his former posting as Governor of Georgia.  20 Ellis recommended, amongst other things,  21 that guarantees should be given that no  22 settlement were planned on Indian lands.  23 Egremont concurred with this and instructed  24 action accordingly.  That a plan was in the  25 preparation is demonstrated by correspondence  26 between Egremont and General Amherst."  27  28 General Amherst was the commander of British forces in  29 North America.  And he goes on to quote from that  30 letter.  And I won't quote it right now, I will come  31 back to it later.  He then goes on in the middle of  32 page 220:  33  34 "Ellis is generally credited as the author of  35 what has become known as the 'Hints'  3 6 document..."  37  38 The Hints document is reproduced under tab 25.  39  40 "...which is unsigned and undated, entitled  41 'Hints Relative to the Division and Government  42 of the Conquered and Newly Acquired Countries  43 in America'.  In these hints, it is stated:  44 'It might also be necessary to fix upon  45 some Line for a Western Boundary to our  46 ancient provinces..."  47 1427  Submissions by Mr. Bell  1 And that would be the colonies on the east coast of  2 North America.  3  4 "...beyond which our People should not at  5 present be permitted to settle, hence as their  6 numbers increased, they should emigrate to Nova  7 Scotia, or to the provinces on the Southern  8 Frontier, where they would be useful to the  9 Mother Country, instead of planting themselves  10 in the Heart of America, out of the reach of  11 Government, and where, from the great  12 difficulty of procuring european Commodoties,  13 they would be compelled to commence  14 Manufactures to the infinite prejudice of  15 Britain."  16  17 And then there is that quote from Egremont, as we  18 have seen.  Over on page 221 the Chief Justice refers  19 to Pownall's Sketch in the middle of the page.  He  20 says:  21  22 "In his 'Sketch' Pownall said permitting the  23 colonies to 'extend their settlements' too far  24 would: ...'probably induce a necessity for such  25 remote settlements (out of reach of navigation)  26 to engage in the production and manufacture of  27 those articles of necessary consumption which  28 they ought, upon every principle of true  29 policy, to take from the mother country...'.  30 The Report of the Lords of Trade was  31 submitted to Egremont on 8th June 1763.  It  32 contains much economic advice, including a  33 statement that the region around the Great  34 Lakes 'which avowedly belong to the Six Nations  35 of Indians' was potentially the richest fur  36 trading area, and it also recommended a  37 mercantilist approach to settlement which would  38 concentrate population near the sea coast so  39 they would be available to English markets."  40  41 And, of course, My Lords, the point of all of this is  42 that there would be no policy reason, therefore, to  43 extend the western limits of the Proclamation area  44 beyond the Mississippi.  Indeed, in those territories  45 it would be -- Britain could not hope to defend any of  46 those settlement.  And if you look at tab 31, for  47 example, this is the report of Sir William Johnson 1428  Submissions by Mr. Bell  1 November 16 -- November 13, 1763 at page 578.  He says  2 near the end of the last complete paragraph:  3  4 "The thirst of making distant settlements is  5 very impolitic, as such frontiers are too weak  6 and remote to oppose even an ordinary scalping  7 party, and therefore it eill be time enough to  8 advance our settlements, when the large Tracts  9 already Pattented are thoroughly inhabited."  10  11 This concern is reflected some 50 years later by  12 Alexander McKenzie concerning the establishment of the  13 Assiniboine colony.  If your lordships would turn to  14 tab 17, page 187.  This is a record of a conversation  15 that one of the persons involved in the application  16 for the opening up of the Assiniboine had with Sir  17 Alexander McKenzie, who was at that time -- I believe  18 he was the Governor of Hudson's Bay Company or a high  19 official of the Hudson's Bay Company.  And he is  20 quoting Sir Alexander McKenzie here.  In the second  21 paragraph of the quotation he said:  22  23 "It was besides a thing impracticability, and  24 mad attempt, to make a Settlement among the  25 Ossiniboians, the most fierce and warlike  26 nation of Indians of North America, who would  27 never permit people to reside that way among  28 them.  I observed that a Treaty would be made  29 with the Indians, and that the first European  30 Settlements in America were begun in the same  31 way.  Sir Alexander replied - that the first  32 Settlements were very differently situated,  33 being formed on the Sea Coast, and none of them  34 were begun 700 miles in the interior, as the  35 intended place of this was: - from which  36 circumstance alone it must at all times lay at  37 the mercy of the Indians, who would not be  38 bound by Treaties."  39  40 Well, regardless of what you may think about that,  41 there was nevertheless a security concern about  42 extending settlements too far to the interior, and  43 that this concern was one which carried on for many  44 years.  So again it would be a dis-incentive to the  45 British to extend the Proclamation line very far into  46 the interior, certainly not beyond the Mississippi.  47 Now I want to deal with a number of the objections 1429  Submissions by Mr. Bell  1 that the Appellants raised in argument concerning the  2 implication of the western boundary.  The Appellants  3 cite -- this what they refer to as "improbable  4 interpretive consequences" which might arise from the  5 implication of a western boundary, including the  6 likely encroachment of France and French claims.  Now,  7 in answer to this point, my lord, I say that there was  8 not much concern among the British that France would  9 be able to mount any kind of incursion into British  10 territory.  And this is evidenced by a speech that was  11 given by Lord Shelburne, who was in 1763 the Chairman  12 of the Board of Trade and later Secretary of State,  13 who discounted the possibility of any attack by the  14 French being mounted in Louisiana.  That's mentioned  15 at tab 32, page 314.  I don't intend to quote it.  16 Therefore, it is submitted, the possibility of  17 French aggitation amongst the Indians west of the  18 Mississippi was slight and presented no potential  19 security threat which would require the extension of  20 Part IV of the Royal Proclamation to the western parts  21 of North America.  And indeed, My Lords, history shows  22 that the French were never again a serious threat to  23 the British interests in North America.  In fact, it  24 was the Americans who took their place as the main  25 challenger.  26 In paragraph III. 7 of my speaking notes, I also  27 want to deal with a number of the other objections  28 raised by the Appellants who cite the possibility of  29 unauthorized settlement beyond the western limit, the  30 use of the western country as a safe haven for  31 fugitives, the lack of regulation for the fur trade,  32 as well as the lack of protection for Indians beyond  33 the western boundary against frauds and abuses.  And I  34 say, My Lords, no doubt such possibilities existed,  35 but the Appellants' argument assumes that the Crown  36 would not react appropriately to such developments as  37 they arose or as they seemed likely.  And there is no  38 basis, in my submission, for such an assumption.  On  39 the contrary, the making of the Royal Proclamation  40 itself is ample proof that the Crown would take action  41 to deal with exigencies as they arose.  42 Likewise, the various Jurisdiction Acts which were  43 cited by the Appellants and the creation of the Colony  44 of British Columbia itself represent Crown responses  45 to new or anticipated developments on the western half  46 of North America.  The establishment of the Mainland  47 Colony of British Columbia was motivated primarily by 1430  Submissions by Mr. Bell  1 the influx of American miners and settlers on the  2 mainland.  And Britain was afraid that this would  3 weaken its claims to the territory.  So here was an  4 appropriate reaction to that development.  5 After the colony of British Columbia was created  6 in 1858, and of course its jurisdiction extended into  7 the northern parts of what is now the province, the  8 monopoly of the Hudson's Bay Company over the northern  9 parts of British Columbia expired in 1859.  The  10 Imperial Parliament was quick to pass a further  11 Jurisdiction Act in 1859 governing the administration  12 of justice and trade with the Indians in those parts  13 of northern British Columbia not included in the  14 Mainland Colony.  15 And I would refer your lordships to tab 38 at this  16 point.  This is another excerpt from Mr. Ireland's  17 article at page 276.  He says:  18  19 "The expiration of the Hudson's Bay Company's  20 Licence on May 30, 1859, necessitated setting  21 up the new administration machinery in the  22 territory not included in Rupert's Land nor in  23 the British Pacific colonies.  This was  24 accomplished by an Act 'to make further  25 Provision for the Regulation of the Trade with  26 the Indians, and for the Administration of  27 Justice in the Northwestern Territories of  28 America,' which empowered the Crown to appoint  29 Justices of the Peace authorized to try  30 offences summarily, and to punish by fine and  31 imprisonment, in the British American Indians  32 Territories.  Causes involving death sentence,  33 or in which the punishment which could be  34 imposed by a Justice was inadequate, were to be  35 sent to trial in the Courts of either Upper  36 Canada or British Columbia.  The power to make  37 regulation for the conduct of the trade with  38 the Indians was also conferred on the Crown,  39 but it was not the immediate intention of the  40 Government to avail itself of any of the powers  41 of this Act."  42  43 And then at footnote 40 there is a cite for this piece  44 of legislation.  45 Indeed, My Lords, the British Crown very early on  46 showed itself willing to take action to interfere with  47 and reverse unauthorized settlement and fraudulent 1431  Submissions by Mr. Bell  1 purchases of land from the Indians.  And there is an  2 example of this at tab 33.  Here we have Egremont  3 himself writing to General Amherst.  And about halfway  4 down the page he says:  5  6 "The King trusts, that you will, at least, be  7 able to prevail with the People concerned in  8 this pretended Purchase, to suspend, for the  9 present, the making the Settlement in Question,  10 'till you shall have reported to me, for the  11 King's Information, a true State of this  12 Matter; And you will accordingly make the  13 necessary Inquiries into it, that His Majesty  14 may be able to judge what farther Orders it may  15 be expedient to give to prevent effectually any  16 Hazard of an Indian War, His Majesty,having it  17 much at heart to conciliate the Affection of  18 the Indian Nations, by every Act of strict  19 Justice and by affording them His Royal  20 Protection from any Incroachment on the lands  21 they have reserved to themselves for their  22 hunting Grounds, and for their own Support and  23 Habitation."  24  25 So the point is, my lord, that the risks of  26 undesirable effects of having a western boundary could  27 be easily managed and were, in fact, managed by the  28 policy makers of the Governors concerned.  2 9 Now, My Lords, I want to move to Part IV of my  30 speaking notes.  The point here is that the Royal  31 Proclamation was not intended to apply to Indians  32 outside its boundaries.  The Appellants rely on the  33 reference in Part IV of the Royal Proclamation to "the  34 several nations and tribes of Indians with whom we are  35 connected and who live under our protection".  In my  36 respectful submission, my lord, this means the Indian  37 nations known to the British at the time of the Royal  38 Proclamation.  And there is support for this  39 interpretation in the Labrador boundary case, which is  40 at tab 35, a passage that I have already quoted.  I  41 will just remind your lordships about it at page 421  42 where Viscount Cave says:  43  44 "The reservation is confined to lands occupied  45 by 'the said Indians' - that is to say, those  46 who are referred to in the next preceding  47 paragraph of the Proclamation as nations or 1432  Submissions by Mr. Bell  1 tribes of Indians with whom The King was  2 connected and who lived under his protection;  3 and it appears from the report of the Lords of  4 Trade, dated June 8, 1763, on which the  5 Proclamation was based, that the Indians so  6 described consisted of those tribes of the Six  7 Nations who were settled round the great lakes  8 or beyond the sources of the rivers which fell  9 into the River St. Lawrence from the north.  10 This description would not include Indians  11 residing beyond the sources of the rivers which  12 flow into the Gulf of St. Lawrence or into the  13 Atlantic."  14  15 So the Privy Council in the Labrador boundary case  16 recognized that there was distinctions to be drawn in  17 deciding which nations of Indians fall within this  18 description.  And indeed, My Lords, use in that phrase  19 of the word "several", the "several nations and tribes  20 of Indians" is, in my submission, a word of limitation  21 which indicates a non-expansionary interpretation.  22 The trial judge dealt with this issue at page 231  23 of his judgment under tab 3.  He says in the second  24 paragraph:  25  26 "I am further satisfied beyond any doubt that  27 the Crown has not 'connected' in any way with  28 the Indians of the Canadian west in 1763.  They  29 did not live under the Crown's protection, and  30 they owed the Crown no actual, legal or  31 emotional allegiance."  32  33 Now, My Lords, the Appellants relied in argument  34 on -- and here I am back at my speaking notes,  35 paragraph IV.4.  They relied in their argument on  36 references to some of the trade licences to "Indian  37 nations living under His Majesty's protection" as  38 evidence that since the same phrase is used in the  39 Royal Proclamation, the Royal Proclamation was  40 intended to apply to all Indians with whom the Crown  41 authorized trade.  The Province submits, however, that  42 the phrase "Indians living under His Majesty's  43 protection" referred to in the trade licences were  44 simply those Indians to whom the protection of the  45 Mutiny Act of 1765 extended.  46 And I will ask your Lordship to -- lordships to  47 refer to tab 29.  Now, My Lords, as a result of the 1433  Submissions by Mr. Bell  1 Bill of Rights, the keeping of a standing army in  2 times of peace in Britain is prohibited without the  3 consent of Parliament.  So every year Parliament has  4 to pass an Act.  And for many years it was called the  5 Mutiny Act.  And in this particular Act additional  6 provisions were included governing the situation in  7 America in article number XXV, which says:  8  9 "And whereas several crimes an offences have  10 been and may be, committed by several persons,  11 not being soldiers, that several forts or  12 garrisons, and several other places within his  13 Majesty's dominions in America, which are not  14 within the limits or jurisdiction of any civil  15 government there hitherto establish; and which  16 crimes and offences are not properly cognizable  17 or triable and punishable, by a court-martial,  18 but by the civil magistrate, by means whereof  19 several great crimes and offences may go  20 unpunished, to the great scandal of government,  21 et cetera."  22  23 And it goes on to provide that:  24  25 "...such offenders may be apprehended..."  26  27 if you look at the side bar,  28  29 "...and being charged on oath with the offence  30 may be committed to safe custody until  31 delivered over to the civil magistrate."  32  33 My submission, my lord, is that this protection  34 applied to offences committed against Indians, and  35 that it was this particular piece of legislation that  36 warranted the use of the phrase "Indian nations living  37 under His Majesty's protection".  Indeed, My Lords,  38 all of the licences shown by the Appellants at the  39 hearing were issued later than the Mutiny Act.  At  40 best, My Lords, the phrase could have referred to the  41 fact that trade was being carried on with Indians  42 living within the reserve as well as those outside the  43 reserve.  44 That concludes my argument on the major  45 proposition A.  46 I now come to the second major proposition B, the  47 Royal Proclamation did not apply to later acquired 1434  Submissions by Mr. Bell  1 colonies such as British Columbia.  And your lordships  2 will recall the discussion that the Appellants  3 presented about whether the Proclamation has  4 prospective effect or not.  5 And I make three main submissions under this  6 heading.  First of all, to the effect that the Royal  7 Proclamation has prospective effect, it is confined to  8 a defined geographic area.  I also say that the  9 authorities which were cited by the Appellants do not  10 support a geographical expansion of the Royal  11 Proclamation's provisions.  And, thirdly, it is my  12 respectful submission, My Lords, that the Jurisdiction  13 Acts which were relied on by the Appellants did not  14 extend the Royal Proclamation to British Columbia.  15 Dealing with the first of those propositions,  16 assuming for the moment that Part IV of the Royal  17 Proclamation should be given prospective effect as a  18 constitutional instrument having the force of statute,  19 this effect cannot purport to expand the fixed  20 boundaries within which the Royal Proclamation  21 applies.  I am arguing here, by analogy, the Quebec  22 Act, 1774 was also a constitutional statute, and thus  23 required a prospective interpretation.  However, no  24 interpretation could extend its application beyond the  25 boundaries set forth in it.  26 Therefore, the Royal Proclamation's prospective  27 effect, insofar as Indians are concerned, would  28 include the recognition of Indian nations not known to  29 the Crown in 1763 who resided within the bounds of the  30 reserve, that is nations not on the list of 54  31 mentioned in the appendix to tab 30, if any.  32 Dealing now briefly with the authorities that the  33 Appellants cited in support of a geographical  34 expansion of the Royal Proclamation provisions.  In  35 particular, well, they say that an Imperial enactment  36 drafted to apply to British territories will cover  37 colonies created subsequently.  And they cited, in  38 particular, Post Office v. Estuary Radio Limited and  39 R. v. Kent Justices.  My submission is, my lord, that  40 none of these cases addresses the situation where the  41 enactment in question has defined boundaries within  42 which its application is restricted.  For example, in  43 the Post Office v. Estuary Radio case the boundaries  44 of the United Kingdom were not fixed and were  45 understood to change from time to time.  And, of  46 course, the Kent Justices case simply says that  47 domestic courts must give effect to the Crown's 1435  Submissions by Mr. Bell  1 territorial claims regardless of their merits under  2 international law.  3 Therefore, my lord, in a case where you have a  4 statute that has defined geographical boundaries, it  5 is my respectful submission that for it to apply to  6 later acquired territories, express words along the  7 lines of "colonies hereafter acquired" would be needed  8 in order to effect that purpose.  9 And now I would like to move to a discussion of  10 the Jurisdiction Acts.  Now, tab 36 is relevant here.  11 Tab 36 is the 1858 Act establishing the Government of  12 British Columbia.  And in paragraph IV there is a  13 recital of the 1802 and 1821 Jurisdiction Acts which I  14 will deal with in detail in a moment.  But suffice it  15 to say that both of those Acts referred to or use the  16 phrase "Indian Territories".  17 And the Appellants contend that the use of the  18 expression "Indian Territory" or "Indian Country" in  19 these Jurisdiction Acts and the 1858 Act creating the  20 colony imply that the provisions of Part IV of the  21 Royal Proclamation were made to apply to those  22 territories.  I respectfully submit, my lord, that  23 this conclusion does not follow.  The phrase "Indian  24 Country" or "Indian Territory" was a general term used  25 to refer to unsettled lands in western North America -  26 both within and outside the bounds of the reserve  27 created under Part IV of the Royal Proclamation.  It  28 didn't have any -- it wasn't a term of art which  29 imported necessarily Part IV of the Royal  30 Proclamation.  There is no necessary implication that  31 the use of the term carried with the the specific  32 provisions of Part IV of the Royal Proclamation.  33 I would like to refer your lordships to tab 37  34 just to give you an example of how the phrase "Indian  35 Country" is used in that sense.  Tab 37 is a copy of a  36 letter from the North West Company, some of the main  37 actors in the North West Company, to Peter Russell,  38 Administrator in Montreal.  And they were discussing  39 the problems that have arisen as a result of the  40 treaty with the Americans setting a boundary near the  41 Lake of the Woods and how they've had to search out a  42 new passage to Western North America.  And they is  43 say:  44  45 "That by the treaty of 1783 the south side of  46 the Straits of St. Mary's extending from Lake  47 Huron to Lake Superior, as well as the same 1436  Submissions by Mr. Bell  1 side of the Communication from thence to the  2 Lake of the Woods having been ceded to the  3 United States of America, Your Memorialists  4 with a View of rendering the Commercial  5 intercourse with the North West Country as  6 perfectly independent of that Government as the  7 existing Circumstances would admit were induced  8 early in the succeeding Year under the express  9 sanction and countenance of Sir Frederick  10 Haldimand then Governor in Chief of Canada, to  11 explore at a very considerable Expence a  12 Northern communication to the North West  13 Country by the Way of Nipigon, etc."  14  15 Then skipping down a paragraph they say:  16  17 "That your Memorialists, in common with all His  18 Majesty's Subjects trading to that part of the  19 Indian Country feel the absolute necessity of a  20 Communication being opened and effected which  21 will render at all times and in any event that  22 commerce secure and free from Interruption."  23  24 This letter is dated 1798.  And its an example, My  25 Lords, of how the phrase "Indian Country" was used to  26 mean in this case what they referred to as the North  27 West Country, which could only be the prairies and  28 Western North America.  And, indeed, they use the  29 phrase "that part of the Indian Country" indicating  30 that the "Indian Country" was more extensive than  31 that.  And the phrase is used quite loosely here, not  32 indicating any connection with the Royal Proclamation.  33 Indeed, your lordships will recall that the  34 extension of the boundaries of Quebec by the Quebec  35 Act in 1774 took in some of what was referred to as  36 the "Indian Territory".  And my respectful submission  37 is, my lord, that this simply demonstrates that it was  38 felt and it was thought at that time that "Indian  39 Country", as it was known, could be divided up for  40 different administrative purposes.  The phrase "Indian  41 Country" or "Indian Territory" does not appear in the  42 Royal Proclamation.  And there is no specific  43 provision to say that the Royal Proclamation applies  44 to "Indian Country" as it may be defined from time to  4 5 time.  46 And if I could refer your lordships back to tab  47 36.  There again this is the Act establishing the 1437  Submissions by Mr. Bell  1 Mainland Colony of British Columbia, and Article IV  2 reciting the provisions of the Jurisdiction Acts.  And  3 over on the second page there is a reference at the  4 top.  It says:  5  6 "...within the Indian territories and other  7 parts of America not within the limits of  8 either of the provinces of Lower or Upper  9 Canada or of any Civil Government of the United  10 States. . . "  11  12 And the phrase is repeated, My Lords, three lines  13 down:  14  15 "...said Indian territories and other parts of  16 America..."  17  18 And then about six lines farther down:  19  20 "...said Indian territories and other parts of  21 America."  22  23 And then there is a phrase relating to issuance of:  24  25 "...Justices of the Peace within such parts of  26 America as aforesaid, as well within any  27 territories therefore granted to the Company of  28 Adventures of England trading to Hudson's Bay  29 as within the Indian territories of such other  30 parts of America as aforesaid."  31  32 And then the phrase is repeated in the next complete  33 paragraph.  34  35 "The Indian territories and other parts of  36 America."  37  38 My respectful submission is, my lord, that if "Indian  39 Territories" the phrase "Indian Territories" does  40 refer to the reserve created under the Royal  41 Proclamation, then it is just as possible that British  42 Columbia could be covered by the phrase "other parts  43 of America not within Upper or Lower Canada or under  44 the jurisdiction of the United States".  45 HUTCHEON, J.A.:  I'm sorry, I don't have the point at all.  This  46 is reciting from the Jurisdiction Act --  47 MR. BELL:  Yes, my lord. 143?  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  HUTCHEON, J.A.:  -- giving them jurisdiction over Indian  territories and other parts of America?  MR. BELL:  Yes, my lord.  HUTCHEON, J.A.:  What do you take from that, then?  MR. BELL:  Well, the Appellants say that the use of the term  "Indian Country", since the term applies to  northwestern British Columbia, that it meant that the  Royal Proclamation was imported to those parts from  the use of that phrase.  I think that's a fair  characterization of the argument.  And I am simply pointing out, my lord, that  although the phrase was used, it was used in  conjunction with the phrase "other parts of America  not within the limits of either of the provinces or  the United States", and that it's just as possible  that British Columbia fell within the meaning of  "other parts of America" as it did within the phrase  "Indian Territories".  HUTCHEON, J.A.:  I see.  MR. BELL:  There is no way of knowing by reading the statute.  And in any case, the phrase "Indian Territories"  doesn't import the provisions of the Royal  Proclamation for the reasons that I have explained.  ]  am getting near the end of my argument, My Lords.  I  probably have I have another 10 or 20 minutes.  THE COURT:  All right.  Well, we will take the afternoon break.  THE REGISTRAR:  Order in court.  Court is adjourned.  (AFTERNOON RECESS)  THE REGISTRAR  HUTCHEON, J.A  MR. BELL:  HUTCHEON,  MR. BELL:  HUTCHEON,  MR. BELL:  HUTCHEON,  Order in court.  Before you go on, Mr. Bell, there was something  that I was going to ask you to clarify for me, and it  is at tab 3, page 231.  Page 231, my lord?  J.A.:  231 of the trial judge's judgment.  In answer  to a question of Mr. Justice Lambert you've indicated,  as I thought you said anyway, that the policy of the  Royal Proclamation was accepted by the Province as  applicable to British Columbia.  No.  I didn't quite put it that way, my lord.  I  think what I said was that in the spirit of the Royal  Proclamation in terms of settling the grievances of  Indian people, the Province wants to enter into  treaties with whichever Indian peoples are interested.  J.A.:  But not to cede the land?  That's right.  J.A.:  You are not agreeing with the trial judge in 1439  Submissions by Mr. Bell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the last paragraph where the judge says:  "It is then argued that if the Royal  Proclamation does not apply to British  Columbia, it is at least a statement of the  policy."  And then he says:  "I do not understand how the Proclamation, in  areas beyond its reach, can be applied to  displace the common law."  Which he ties to villages and, well, I think the  preservation of village sites.  MR. BELL:  Well, the question of village sites is going to be  dealt with by somebody else.  HUTCHEON, J.A.:  Oh, I see.  MR. BELL:  But the first part of that paragraph there is no  difference between our position and the Chief Justice.  HUTCHEON, J.A.:  So you go down to where he says:  "I do not understand how the Proclamation, in  areas beyond its reach, can be applied to  displace the common law."  MR. BELL:  Yes.  We agree with that statement, my lord.  HUTCHEON, J.A.:  I see.  All right.  MR. BELL:  I now want to deal with my speaking notes at page 13,  paragraph C arguing that the ambiguity rule does not  apply to the Appellants in relation to the Royal  Proclamation.  You will recall, My Lords, that the  Appellants cited the ambiguity rule which was expanded  in the Nowegijick which extended to the Royal  Proclamation on the western boundary on the grounds  that it was amgibuous and, therefore, because it dealt  with Indians, that they ought to receive the benefit  of the ambiguity.  I am saying here, My Lords, that the ambiguity  rule which applies to treaties and statutes relating  to Indians cannot assist the Appellants unless they  can show that a statute is capable of applying to them  in the first place.  Because a particular treaty, for  example, may refer to Indians is no justification for  expanding its application beyond the bounds of the  treaty area to include Indians not covered by the  treaty. 1440  Submissions by Mr. Bell  1 In the Nowegijick case Section 87 of the Indian  2 Act was under consideration.  And that was a provision  3 which purported to apply to Indians generally in  4 Canada.  And the applicant in that case fell within  5 that description and was thus able to avail himself of  6 the ambiguity rule in the interpretation of a  7 provision which related to his liability to taxation.  8 And the question in this case, the very issue in  9 this case, is whether the Royal Proclamation is  10 capable of applying to the Appellants.  And if it has  11 definite geographic boundaries, then it is not capable  12 of applying to the Appellants.  And the ambiguity  13 rule, in my respectful submission, cannot be invoked  14 in the resolution of that issue.  But the Appellants'  15 argument assumes the resolution of that question.  16 While we are on the subject, the Appellants cited  17 the judgments of a number of the judges who have had  18 something to say about the Royal Proclamation in the  19 past and who had merging opinions as to whether it  20 applied in British Columbia.  They cited these  21 differences as support for their suggestion that there  22 was ambiguity.  In my respectful submission, my lord,  23 there is no ambiguity upon a proper interpretation of  24 the Royal Proclamation, especially as to the existence  25 of the question of the -- the question of the  26 existence of the western boundary.  There is only  27 imprecision as to its exact location.  28 I might also add that it seems that the judges who  29 have spoken on this question in the past did not have  30 the benefit of the -- of microscopic examination to  31 which the Royal Proclamation has been subjected in  32 this case.  And, indeed, the trial judge comments on  33 this when he refers to the "unfocused attention that  34 the Royal Proclamation has received in earlier  35 judgments".  36 Finally, my lord, a point that can be disposed of  37 quickly, in my submission, the question of the  38 Colonial Laws Validity Act.  It's a fairly  39 straightforward point, My Lords.  The Appellants argue  40 that the Colonial Laws Validity Act required the  41 reading down of colonial statutes so that they did not  42 interfere with the provisions of the Royal  43 Proclamation.  And, again, I am saying here that this  44 assumes that the Royal Proclamation applied in British  45 Columbia.  If it did not apply in British Columbia,  46 then it was not a law that extended to the colony and  47 was, therefore, not covered by the repugnancy 1441  Submissions by Mr. Taylor  1 principle of Section 2 of the Colonial Laws Validity  2 Act.  3 Finally, my lord, a point that is not in the  4 speaking notes but which is referred to in the factum,  5 and it is an alternative argument.  I will provide  6 your lordships with reference to it in a moment.  If  7 the court finds that the Royal Proclamation did not  8 have fixed western boundary, the province says that  9 Part IV was nevertheless not capable of applying in  10 British Columbia because it was an exercise of the  11 minor prerogative to legislate.  And a minor  12 prerogative cannot apply in settled colonies.  And  13 British Columbia was a settled colony.  The argument  14 was set out in detail in the appendix to our factum it  15 is appendix volume 2, tab A 1, paragraphs 25 to 31.  16 That concludes my argument on the Royal  17 Proclamation, My Lords.  18 TAGGART, J.A.:  Thank you, Mr. Bell.  Mr. Williams.  19 MR. WILLIAMS:  Thank you, my lord.  Mr. Taylor is ready to  20 proceed with the adverse dominion aspect of the  21 argument.  We have distributed the books this time, so  22 we don't have to have any time in between if you wish  23 him to proceed now.  24 TAGGART, J.A.:  All right.  25 MR. RUSH:  My Lords, before Mr. Taylor starts, I wonder if I  26 could ask a clarification of both Mr. Williams and Mr.  27 Bell.  It was on the very last point.  And that is are  28 my friends arguing that B.C. is a settled colony?  I  29 took it from Mr. Bell that that was his final and  30 concluding point.  But I understand from Ms. Mandell  31 as of yesterday that Mr. Williams took a different  32 tack and said that it was a hybrid.  I would like a  33 clarification on that.  34 MR. WILLIAMS:  Ms. Mandell has misunderstood my position the way  35 I have misunderstood hers, I'm afraid.  It is a  36 settled -- we do take the position that if you have to  37 choose between whether it is a settled or a conquered  38 colony, it is a settled colony.  The point I was  39 trying to make was that as a settled colony, as  40 discovery would be applicable, if you were to  41 technically follow all of the rules, then of course we  42 know what they are.  The laws of the settlers apply.  43 There has to be a parliament.  The Crown law doesn't  44 apply and the laws of the native people don't apply.  45 Those are the hard line rules, if you will, of  46 following that doctrine through.  47 What I said was in keeping with what had been said 1442  Submissions by Mr. Taylor  1 by Professor Hogg in Slattery, and a number of the  2 cases, is that it appears as though they didn't really  3 follow the rules that tightly.  And what happened was  4 what I call a modified version of the settlement  5 doctrine.  So it is a modified version in realty.  But  6 if one has to pick which was it, it was the settlement  7 doctrine or discovery.  8 TAGGART, J.A.:  Yes, Mr. Taylor.  9 MR. TAYLOR:  Thank you, My Lords.  Now, before I start, I will  10 perhaps explain the organization and a brief overview  11 of the areas that I am going to deal with and position  12 of the Province on those areas.  You should all have  13 in front of you another white book, this one labelled  14 W-4.  And that book contains extracts from the various  15 authorities and materials I will be referring to.  16 In addition, I, too, will be handing out speaking  17 notes on three issues that deserve further elaboration  18 based on the materials in the factum.  I will be  19 following the factum essentially.  And the materials  20 that I will be dealing with are in tab 8 of the  21 factum, other than for several paragraphs which, as  22 Mr. Williams indicated, he was passing the puck to me  23 on, and that comes out of tab 5 under paragraphs 91  24 through 96 and 101 to 103.  25 This section in the main deals with the various  26 aspects of the Province's right to extinguish by the  27 exercise of adverse dominion.  I am talking about the  28 Province.  It also includes a colonial right to  29 exercise by adverse dominion.  But by far the greater  30 amount of history with respect to these activities  31 involve the Province rather than the Colony.  But I  32 will deal briefly with the Colony's rights as well.  33 In dealing with that, it is the Province's  34 position that in all cases the grant of an estate in  35 fee simple has the effect in law, by necessary  36 implication, of extinguishing aboriginal rights.  37 In addition is the Province's -- and this is all  38 prior to 1982.  After 1982 and the passage of 1931  39 different situations prevail.  So I will be dealing  40 with pre-1982 and with events after 1982.  So the fee  41 simple in all cases distinguishes by necessary  42 implication.  And we say, as well, that lesser grants  43 of interest where licences or other grants to third  44 parties, or in some cases governmental action such as  45 the creation of roadways and that sort of thing, can  46 extinguish as well by necessary implication if it  47 amounts to the exercise of complete dominion adverse 1443  Submissions by Mr. Taylor  1 to the right of occcupancy of the native people.  2 It is our position, as well, that the consent is  3 not required, the consent of the native people is not  4 required.  I will be examining the constitutional  5 framework for the Province's authority and the Federal  6 Government's authority for that merit and the  7 interplay between those two levels of authority, and  8 the background for the authority in the BNA Act.  9 It is the Province's position that under Section  10 91(24) that the only lands reserved for Indians in  11 British Columbia are those lands to which -- which  12 have been specifically reserved and which are now  13 known as statutory reserves under the Indian Act.  It  14 will further be our position that aboriginal rights  15 include more matters than are included in the core of  16 interests traditionally seen to be protected or under  17 the ambit of Section 91(24) of the BNA Act.  18 It will be our further position that even if  19 provincial legislation or activity in some way is  20 directed at the core or goes to the core of those  21 interests protected under 91(24) that that legislation  22 may nonetheless apply to Indians if it is incorporated  23 by reference under Section 88 of the Indian Act.  24 With respect to the other main constitutional  25 provision in this area, Section 109, it is our  26 position that if the aboriginal rights in this case  27 constitute a burden, it is nonetheless that burden  28 does not take away anything from the entire beneficial  29 ownership of the lands which from the time of  30 Confederation have been in the Province.  31 In other words, the interest of the Province in  32 those lands are entire.  As Mr. Williams explained,  33 the concept of allodial title, everything flows from  34 the allodial title and all the estates granted from  35 the allodial title are the entire interests recognized  36 in Canadian land law.  And this burden is off to the  37 side.  It is a relationship between the Crown and  38 native peoples.  It is a burden.  But it can be  39 removed by the Crown and it can be removed by the  40 Province.  41 And at the end of the area, I will be explaining  42 the changes to that regime which took place as of 1982  43 with the passage of the s. 35(1) of the Constitution  44 Act with respect to those aboriginal rights which have  45 not already been extinguished by colonial action and  46 provincial action up to 1982.  47 Now, if I could ask you to turn to tab 5 of the 1444  Submissions by Mr. Taylor  1 factum, I will just pick up on those -- I'm sorry,  2 it's tab 6, paragraph 91 at page 34.  I will pick up  3 where Mr. Williams left off.  Mr. Williams laid out  4 the argument dealing with the Calder XIII documents  5 not evidencing the plain and clear intention to  6 extinguish.  7 And we say, as set out in 91, although the  8 enactments did not, in and of themselves express the  9 clear and plain intention of the Crown to extinguish,  10 they did form a valid legislative framework for the  11 grant of interests in land or over resources derived  12 from the allodial title of the Crown.  Interests or  13 uses which were granted which amounted to an exercise  14 of "complete dominion adverse"  to the continuation of  15 particular aboriginal rights to particular lands or  16 resources effected the extinguishment of those  17 particular rights.  18 And we say further, at paragraph 92, that the  19 colonial enactments again evidenced an intention to  20 create a scheme for conveyance of land to settlers.  21 And that I think the intention is found by the trial  22 judge.  And I think the overall intention was to open  23 up the colony for settlement.  That in itself did not  24 express a sufficient intention to thereby extinguish  25 aboriginal rights.  But those intentions and the  26 language used in the actual ordinances, which enabled  27 grants to be made and which set out the Torrens  28 system, we say upon the granting of an interest in fee  29 simple did extinguish and with other grants may well  30 have extinguished.  31 Now, Mr. Williams has dealt with the Calder XIII  32 documents and the approvals received, the royal  33 approvals received.  And it has been raised, but as  34 pointed out in paragraph 94, there is a long line of  35 authority that the burden is on the party challenging  36 the authority of the government or an official of the  37 government to prove that that official acted beyond  38 authority.  And the cases are cited there.  I won't  39 take you there.  40 And I submit that on the facts of this case that  41 burden certainly has not been discharged.  The most  42 that can be said that there doesn't seem to be any  43 clear documentary proof of royal assent, that  44 documentary proof presumably is lost in the mists of  45 time or the mists of history.  But there is no  46 evidence, there is no substantive evidence to say that  47 there was no royal assent or royal approval.  And in 1445  Submissions by Mr. Taylor  1 those circumstances, the acts of the colonial  2 officials must be taken to be regular and fully  3 authorized.  4 In paragraph 95 we say that the colonial officials  5 acted as instruments of the Crown, and that those  6 grants perfected the intention of the Crown through  7 Executive Acts.  The situation here is not dissimilar  8 from the situation with respect to the bureaucratic  9 function of issuing deeds under sale and of  10 registering fee simple entitlement in books and  11 granting forest licences or making the appropriate  12 registrations.  13 The situation is not that different from the facts  14 that were examined in Sparrow where the particular  15 issue was not the legislation and it was not the  16 regulations.  It was the term of the licence.  That  17 was the issue whether the net length restriction  18 issued pursuant to regulations was somehow invalid.  19 And the Supreme Court of Canada, as is obvious, were  20 prepared to consider whether or not those types of  21 regulations, including the various restrictions  22 imposed from time to time, could effect an  23 extinguishment.  And we say the Bureaucratic Acts are  24 part of that package, but it is all authorized by  25 legislation and it all flows from the legislation.  26 At paragraphs 181 to 183, I will deal with tab 8  27 because it is dealt with in more detail in tab 8.  And  28 if I could take your lordships to tab 8 now.  As I've  29 stated, it is our position that extinguishment of  30 aboriginal rights may be accomplished by the exercise  31 of complete dominion adverse to the right of  32 occcupancy.  And that language is taken from the  33 decision in U.S. v. Sante Fe Railway.  34 HUTCHEON, J.A.:  I am not sure I am with you.  35 MR. TAYLOR:  Tab 8, paragraph 181.  And that quote is from the  36 case of U.S. v. Sante Fe Railway Company.  And it is  37 oft quoted.  38 LAMBERT, J.A.:  May I just stop you for a moment.  What  39 essentially you are saying on this point, if I  40 understand what you are saying, is that the Executive  41 Act officially in the fee simple title puts an end to  42 the aboriginal right in the land, be it an ownership  43 right, or a right of exclusive occcupancy, or just a  44 right of occcupancy, or even whether it is hunting  45 right, or whatever it is, the fee simple title puts an  46 end to it?  47 MR. TAYLOR:  That's correct. 1446  Submissions by Mr. Taylor  1 LAMBERT, J.A.:  But things that are less than the fee simple  2 title such as forest, timber harvesting licence, or  3 staking a mineral claim, those would not put an end to  4 it because they are not complete dominion adverse to  5 the right of occcupancy?  6 MR. TAYLOR:  It depends how you define the right.  In essence,  7 yes.  But some rights could be nonetheless put an end  8 to by the grant of those lesser interests without --  9 as an example, and I have got examples in the factum,  10 but a grazing licence to take a very simple example.  11 If it was alleged that the right to graze livestock  12 over an area was an aboriginal right and a grazing  13 permit was issued, assuming it was long enough in  14 term.  Paul suggested maybe 999 years would affect  15 that.  But if it was effectually renewable or had a  16 renewing term, as a lot of permits are, I would say  17 that the aboriginal right to graze would thereby be  18 displaced.  19 But as the terms of the permit make clear, and  20 which the authorities make clear, which I will be  21 referring to, with respect to a grazing permit a  22 number of other uses that are not incompatible with  23 grazing are permitted on the same lands.  So people  24 can go on to the lands, they can hunt on the lands,  25 they can do a number of things on the lands provided  26 they don't graze animals on the lands because that  27 right has been granted exclusively to the holder of  2 8 the permit.  29 So in that context that specific right or that  30 part of the bundle of aboriginal rights may well be  31 extinguished if the other aspects of complete dominion  32 are met.  And one of them, of course, would be the  33 length of time.  It might not be the case if we were  34 dealing with a very short term lease or licence.  35 LAMBERT, J.A.:  So, in effect, that this Act might extinguish  36 the exclusive out of the right of exclusive occcupancy  37 but leave the aboriginal right as a continuing right  38 of occcupancy, but now it is shared.  And the basis of  39 the sharing depends on both an examination of the  40 aboriginal right and the examination of the  41 legislation?  42 MR. TAYLOR:  Yes.  In essence, if you take the right as a right  43 of occcupancy, exclusive or non-exclusive, the  44 particular grant could extinguish a part of that  45 right.  Its means of expression are an element of it,  46 such as in the case of grazing, the right to graze if  47 it has been taken away. 1447  Submissions by Mr. Taylor  1 And there is other interests as well.  But there  2 are a host of grants and licences and permits used in  3 the province which do not, in and of themselves, bar  4 access to the lands on which it is granted.  Mineral  5 grants are an example.  They grant the holder the  6 right to extract the minerals from under the ground,  7 but anyone has the right to go on to the land provided  8 they are not interfering with the workings or impeding  9 the extraction of the minerals.  And there are a  10 number of other grants of a similar nature.  11 Now, in those circumstances what has been given to  12 another, I would say because it is the exercise of  13 complete dominion, takes away that part of the  14 aboriginal right, if in fact it is part of the  15 aboriginal right being asserted.  But the other aspect  16 of it like the right to go on to the property or the  17 right to forage on the property or whatever, that  18 would remain.  And that could be compatible and that  19 would not be extinguished.  It may well be diminished,  20 as they would have to ensure that their activities  21 were not interfering with the -- with the activities  22 of the right owner, but there is a coexistence.  And  23 the coexistence that we envision is not dissimilar  24 from the coexistence of the treaty right in the Sioui  25 case and the Jack Cartier Park regulations.  In other  26 words, if they can live together they should be  27 permitted to live together.  It is only when they  28 cannot live together that we would say that the  29 intention to extinguish by way of necessary  30 implication will arise.  31 LAMBERT, J.A.:  Yes, thank you.  32 MR. TAYLOR:  Now, My Lords, the quote in U.S. v. Sante Fe  33 Railway is set out at paragraph 182.  It has been  34 referred to a number of times in these proceedings,  35 and I'm sure in other proceedings.  36 We note in paragraph 183 that that principle was  37 approved and commented on favourably by both Mr.  38 Justice Judson and Mr. Justice Hall in the Calder  39 case.  And Mr. Justice Hall's decision in Calder has  40 been relied on by the Appellants for support in a  41 number of areas.  And I think it is worthwhile, at  42 least, to take -- to turn that up to see where it  43 takes place.  44 WALLACE, J.A.:  What tab are we talking about?  45 MR. TAYLOR:  It would be at tab 183.  And the first page of that  46 tab, page 160 is an extract from the decision of Mr.  47 Justice Judson.  And right at the bottom, as you will 1448  Submissions by Mr. Taylor  1 see, he refers to the U.S. v. Sante Fe authority,  2 including the words set out "by the exercise of  3 complete dominion adverse to the right of occcupancy".  4 And in essence, that decision founds the basis for  5 the ratio of Mr. Justice Judson in that case.  Now, at  6 pages 200 to 202, Mr. Justice Hall considered United  7 States authorities.  And starting at the bottom of  8 page 200 it is stated:  9  10 "The Court of Appeal in its judgment cited and  11 purported to rely on the United States v. Sante  12 Fe Pacific Railway Co.  This case must be  13 considered to be the leading modern judgment on  14 the question of aboriginal rights."  15  16 And then Mr. Justice Hall was of the view that the  17 Court of Appeal had miss applied that decision.  18 TAGGART, J.A.:  I'm sorry, that passage is what?  19 MR. TAYLOR:  That is at the bottom of page 200 starting:  20  21 "The Court of Appeal in its judgment cited and  22 purported to rely on the United States v. Sante  23 Fe Pacific R. Co."  24  25 TAGGART, J.A.:  Okay.  26 MR. TAYLOR:  Then turning over the page at page 201, after the  27 extensive quote from the Sante Fe case, it is stated:  28  29 "It is apparent also that the Court of Appeal  30 misapprehended the issues involved in another  31 United States case.  This is clear from the  32 judgment of Davis J. in Lipan.  In that case it  33 was argued unsuccessfully that after  34 affirmative recognition by Texas prior to  35 entering the Union was essential to any legal  36 assertion to Indian title."  37  38 And going over now to the Lipan case, Mr. Justice Hall  39 cited, without comment, the oft quoted passage from  40 the Sante Fe case at the bottom where he says:  41  42 "The correct inquiry is, not whether the  43 Republic of Texas accorded or granted the  44 Indians any rights, but whether the sovereign  45 extinguished their pre-existing occcupancy  46 rights.  Extinguishment can take several forms;  47 it can be effected 'by treaty, by the sword, by 1449  Submissions by Mr. Taylor  1 purchase, by the exercise of complete dominion  2 adverse to the right of occcupancy, or  3 otherwise...'  While the selection of a means  4 is a governmental prerogative, the actual act  5 must be plain and unambiguous."  6  7 And that's the language that in fact was picked up by  8 the Court in Sparrow, the plain and ambiguous aspect  9 of it.  10 Now, the term "dominion" is defined as the power  11 or right of governing and controlling.  It is an  12 element of sovereign authority; lordship in the sense  13 of the sovereign is its cleanest expression; rule,  14 sword, control.  And in Black's law dictionary, if we  15 could turn that up at tab 184, approaches the  16 definition from the perspective more of property than  17 it does from sovereignty.  But the Oxford Ford deals  18 with sovereignty as well.  But if I could just deal  19 with the Black's definition, it is stated at page 573:  20  21 "Dominion:  ownership or right to property or  22 perfect or complete property or ownership.  23 Title to an article of property which arises  24 from the power of disposition and the right of  25 claiming it."  26  27 And that, My Lords, we say dominion, that dominion  28 flows from the allodial title of the Crown.  It has  29 the right to make the grants over any subject,  30 including native subjects.  And if that grant is  31 inconsistent, totally inconsistent, then  32 extinguishment takes place by this necessary  33 implication.  34 Now, if I can just go back to the Sante Fe case  35 for a moment.  It's been argued by the appellant and  36 some of the intervenors that the Sante Fe case is not  37 authority for the proposition for which we cited, that  38 is that extinguishment can take place by way of a  39 grant of fee simple.  They say that the Sante Fe case  40 is also authority for the proposition that an Indian  41 title survives the grant of fee simple.  And that --  42 there is a statement to that effect in the case, but  43 on a close reading of the case that isn't borne out  44 that that's the effect in all cases.  45 And if I could ask you to turn to tab 182, where I  46 have put some extracts from the case in, that  47 conclusion in the case clearly flows from the fact 1450  Submissions by Mr. Taylor  1 that the grant to the Railway Company in that case was  2 made conditional upon the U.S. extinguishing title,  3 and the argument in the case of Indian title.  And the  4 argument in the case is that U.S. Congress had not  5 extinguished Indian title, therefore the railroad  6 company took title subject to the Indian title.  And  7 there is complications arise in that some of the lands  8 were simply ancestral homelands and some of the lands  9 were ancestral homelands that had been reserved.  So  10 there were two aspects to look at, as well, in terms  11 of what had to be done to extinguish and whether  12 compensation was due prior to that extinguishment.  13 And if I could just take you, first of all, to the  14 headnote which sets out the facts, I think fairly  15 clearly.  And just on the third page, which is page  16 260.  The page numbers are at the bottom left-hand  17 corner in this instance.  And the headnote number 2  18 just before "Annotation Reference" states:  19  20 "Land included in the ancestral home of the  21 Walapais in the sense that they constituted  22 definable territory occupied exclusively by  23 them all lands to which they have 'Indian  24 title' within the meaning of the Act of July  25 1866 or 1867 granting land to the railroad upon  26 the condition that the United States extinguish  27 the title through voluntary cession."  28  29 And that was the term of the actual statute  30 authorizing a grant to the -- grant to the railroad  31 company.  32 At point 5 the discussion that has been referred  33 to in the passage I have referred to:  34  35 "Extinguishment of Indian title based on  36 aboriginal proceedings is a matter over which  37 Congress has supreme power."  38  39 And again the oft quoted statement:  40  41 "The manner, method and time of extinguishment  42 by Indian intitlement raises policital not  43 judiciable issues."  44  45 Then 7 sets out the ratio of the case:  46  47 "Where the right of occcupancy of an Indian is 1451  Submissions by Mr. Taylor  1 not extinguished prior to the date of definite  2 location of a railroad to which land has been  3 granted upon condition that the United States  4 extinguish the Indian title, the railroad takes  5 the fee subject to the encumbrance of the  6 Indian title."  7  8  9 Now turning to page 268 of that case and 270.  10 268.  And this is the decision of Mr. Justice Douglas  11 itself.  It is set out in the left-hand corner just  12 below that the nature of the claim:  13  14 "Respondent claims full title to the lands in  15 question under the grant to its predecessor,  16 the Atlantic and Pacific Railroad Company."  17  18 And then on the next column over, about halfway down,  19 it starts "Section 2", it talks about the section of  2 0 the Act involved by which the original grant was made.  21  22 "Section 2 of the Act of July 27, 1866, the Act  23 under which respondent's title to lands in  24 question derived, provided:  25 'The United States should extinguish, as  26 rapidly as may be consistent with public policy  27 and the welfare of the Indians, and only by  28 their voluntary cession, the Indian title to  29 all lands following under the operation of this  30 act and acquired in the donation of the road  31 named in the act'."  32  33 And then Mr. Justice Douglas goes on:  34  35 "Basic to the present causes of action is the  36 theory that the lands in question were the  37 ancestral home of the Walapais, which the  38 United States agreed to extinguish, and that in  39 the absence of such extinguishment the grant to  40 the railroad 'conveyed the fee subject to this  41 right of occcupancy'."  42  43 So I would submit, my lord, that it is clear that that  44 statement that a grant of a fee is nonetheless subject  45 to this right of occcupancy does not flow from the  46 proposition we are advancing, is not consistent with  47 that proposition, and flows, in fact, from the actual 1452  Submissions by Mr. Taylor  1 terms of the grant in this case.  2 And on page 270, Mr. Justice Douglas read, where  3 it says headnote 3, the language used:  4  5 "Extinguishment of aboriginal Indian title is  6 based on aboriginal possession is of course a  7 different matter.  The power of Congress in  8 that regard is supreme.  The manner, method and  9 time of such extinguishment raise political not  10 judiciable issues."  11  12 And then again that oft quoted passage is set out.  13  14 "The exclusive right in the United States to  15 extinguish Indian title has never been doubted.  16 And whether it be done by treaty, by the sword,  17 by purchase, by exercise of complete dominion  18 adverse to the right of occcupancy, or  19 otherwise, its justness is not open to inquiry  20 in the courts."  21  22 So I submit, on a proper analysis of this case, it is  23 clear that Mr. Justice Douglas, as has been held in  24 subsequent cases in Canada, was of the view that the  25 exercise of complete dominion in this case we are  26 saying the grant of a fee simple would extinguish.  27 My Lords, if I could take you to tab 186.  There  28 is set out various extracts from the Land Ordinance of  29 1870.  And this Ordinance was a predecessor to the  30 various Land Title Acts the Province has had ever  31 since, and set up, in effect, Torrens system of title  32 as we know it today.  33 And if your lordships -- if I could ask you to  34 turn to the last page, the definitions systems section  35 under "Interpretation of Terms" you will see  36 two-thirds of the way through it states:  37  38 "The expression 'Absolute Fee', shall mean and  39 comprise the legal ownership of an estate in  4 0 fee simple."  41  42 And I point that out because fee simple and absolute  43 fee are used throughout the Ordinance, but they are  44 used interchangeably.  Now, this statute, as I say,  45 was a predecessor to the Land Titles Acts and set up  46 Torrens system.  And I would just like to take you  47 briefly through some of its provisions.  If you could 1453  Submissions by Mr. Taylor  1 go to page 4.  2 TAGGART, J.A.:  Yes.  It is 4 o'clock.  Would it be a convenient  3 time?  4 MR. TAYLOR:  This would be a convenient time, my lord.  5 TAGGART, J.A.:  All right. 10 o'clock.  6 THE REGISTRAR:  Order in court.  Court stands adjourned until 10  7 o'clock tomorrow.  8 (PROCEEDINGS ADJOURNED)  9  10  11  12 I hereby certify the foregoing to  13 be a true and accurate transcript  14 of the proceedings transcribed to  15 the best of my skill and ability.  16  17  18  19  20  21 Lisa Reid,  22 Official Reporter,  23 UNITED REPORTING SERVICE LTD.  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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