Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-05-14] British Columbia. Supreme Court May 14, 1992

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 685  Submissions   by Mr.   Grant  1 Vancouver, B.C.  2 May 14, 1992.  3  4 CORAM: Taggart, Hutcheon, Macfarlane, Lambert, Wallace, JJA.  5  6  7 THE REGISTRAR:  In the Court of Appeal for British Columbia,  8 Thursday, May 14th, 1992.  In the matter of Delgamuukw  9 versus Her Majesty the Queen, at bar, my lords.  10 MR. ARVAY:  My lord, I just want to introduce Mr. Glen Bell as  11 counsel.  12 TAGGART, J.A.:  Mr. Bell.  13 Mr.Grant?  14 MR. GRANT:  Thank you, my lord.  15 Yesterday I was at Appendix "C", page eight of the  16 oral history, and I just should advise the court of  17 our intention this morning is that I will -- I am  18 going to very much minimize references.  I will take  19 you to one in R-23 right away, but I am going to be  20 minimizing that and try to complete this appendix and  21 deal with tab 5 before the morning break.  So I am  22 going to be expeditious.  But if I am speaking too  23 fast, I will try to keep track of your lordships that  24 you are not -- that you're following me.  25 First of all, I would like to say with respect to  26 paragraph 18 of the factum, Appendix "C", I referred  27 you yesterday to a number of the authors and writers,  28 and I should just complete my answer to Mr. Justice  29 Lambert, that another reference of Duff is Exhibit  30 901-30 in which Duff critiques Barbeau's dating of  31 totem poles and social organization.  And that's at  32 Exhibit 901-30.  It's in one of our reference books.  33 I will be coming to it and I will mention it in  34 passing and, of course, we will provide you with the  35 Appeal Book references.  Apparently we don't have the  36 updated index ourselves yet but we are checking that.  37 HUTCHEON, J.A.:  These are for Duff and the others?  38 MR. GRANT:  For Duff, all of these Duff references that Mr.  39 Justice Lambert asked me.  40 Now, I would like to -- as I mentioned, I would  41 just ask you to note in tab 18 at the front is the --  42 is Dr. Daly's explanation of oral history, and at --  43 and that's in -- I am not going to take you to it.  44 But at pages 11928 to 11930, which are in there, he  45 explains Trigger, because -- and doctor -- and the  46 trial judge relies on Trigger's apparent rejection of  47 oral history at page 180 of the reasons.  Dr. Daly 686  1 knows Trigger, he explains Trigger, Trigger is a  2 historian who studied the Huron.  The Huron documents  3 do not include oral history, they include the  4 documents -- the best documents of them are the Jesuit  5 Relations, which are ethnohistorical documents, like  6 the Brown records.  And Dr. Daly in those pages  7 answers the questions about Trigger.  8 I would like to take you, to reflect on the last  9 commentary, it's in volume R-23, the very end, just  10 before tab C-19, and this is Dr. John Cove, an extract  11 from his book published in 1987.  And at page 43 --  12 TAGGART, J.A.:  I am sorry, tab?  13 MR. GRANT:  If you go to R-23, my lord, and just before tab  14 C-19, it's the last reference under C-18, actually, so  15 that you see that tab C-19, it's just three pages  16 before that tab.  17 Page 43 of Shattered Images, Dr. Cove's book.  Dr.  18 Cove's another anthropologist who studied with Dr.  19 George McDonald, the Barbeau-Beynon records.  And here  20 he says, at page 43, the first -- the second full  21 paragraph:  22  23 "Although an anthropologist might be willing to  24 accept narratives collected at the turn of the  25 century as representative of the era defined,  26 there is obvious reasons for being suspect of  27 ones recorded later.  Again, my own field  2 8 work..."  29  30 And he did field work among the Gitksan,  31  32 "...indicates that much of their oral tradition  33 has remained unchanged.  Many narratives which  34 I heard are virtually identical to those  35 collected almost 100 years earlier.  Part of  36 the reason for consistency is the connection of  37 oral tradition to important rights and  38 prerogatives and also to the centrality of the  39 feast or potlatch up to the present day."  40  41 And there is other references on pages 44 and 45,  42 the last paragraph on 44 going to the end of the  43 paragraph on 45 that I just ask you to note for  44 reference.  4 5  MR. MACAULAY:  My lords, I wonder in my friend could inform us  46 what exhibit number he is referring to?  47 MR. GRANT:  As my friend knows, this is not an exhibit, it's a 687  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,  J.A. :  he?  MR. GRANT: Dr  WALLACE, J.A.:  MR. GRANT: No  WALLACE, J.A.:  MR. GRANT:  Dr  publication of Dr. Cove in 1987, and my friend is  fully aware of that, and I tell the court that.  It's  not an exhibit.  It is a publication of Dr. Cove.  Now, one other point I wanted to say regarding  this binder, is if you just flip to the very front of  it you will see the first reference is to the document  book of Dr. Richard Daly.  And in that -- volume two.  And that listing is listings of a series of the adaawk  or oral history from the Barbeau-Beynon records from  which Dr. Cove prepared a document, which I will refer  you to later this morning, in which he analyzed all of  the different resources utilized by the Gitksan and  the coastal Tsimshian, in trade and for other  purposes, and he listed them, and the purposes for  which they are used.  He analyzed these oral histories  for that purpose.  Now, I am going to return you to my factum.  Just so I am clear, Dr. Cove was a witness, was  Cove?  Yes.  Was his material adopted by a witness?  Cove's -- what I am referring you to in Dr.  Cove's publication, Shattered Images, is that he is  another anthropologist.  His book came out in 1987.  It may have been referred to in one of the  bibliographies, and I will check that for your  lordsip.  WALLACE, J.A.: I am just wondering, did any witness adopt what  he had to say and was it cross-examined or not cross-  examined on?  MR. GRANT:  Well, his opinion with respect to the validity of  the oral history is the same opinion as Dr. Daly had,  as Dr. George McDonald had, in the material that was  filed with the court, as Drucker had --  WALLACE, J.A.:  Well, they were witnesses.  MR. GRANT:  Drucker is not a witness, Dr. George McDonald is not  a witness.  These are other anthropologists in the  field who Dr. Daly relied upon.  I am referring you  only to yet another reference to this particular body  of material, and another anthropologist who has come  to these conclusions regarding that material.  MACFARLANE, J.A.:  It wasn't in evidence at the trial?  MR. GRANT:  Dr. Cove did not give evidence at the trial.  TAGGART, J.A.:  I say the report was not in evidence at trial?  MR. GRANT:  His book was not in evidence. Not in evidence?  What you have just referred to is not in  1 MACFARLANE, J.A.  2 MR. GRANT: No.  3 MACFARLANE, J.A.  4 evidence?  5 MR. GRANT:  It's not in evidence at the trial.  6 MACFARLANE, J.A.:  How can you refer to it here?  7 MR. GRANT:  Well, as I say, my lord, it was my recollection it  8 was referred to in one of the bibliographies, that is  9 one of the sources relied upon.  And I will advise the  10 court of that, if it was or was not.  11 LAMBERT, J.A.:  How about Mr. Drucker's book or Wilson Duff's  12 book, are they in as exhibits?  13 MR. GRANT:  Yes, all of those are exhibits, all except this  14 reference of Cove's.  15 LAMBERT, J.A.:  You're going to keep telling us every time  16 you're referring to something whether it's in evidence  17 or not?  Because we should have that clearly in mind.  18 MR. GRANT:  Yes, my lord.  And I regret that I had not said that  19 at the beginning.  I should have said that at the  20 beginning with respect to Dr. Cove.  The only  21 reference I have given you that is not in evidence is  22 the Cove reference.  23 LAMBERT, J.A.:  There is a recent decision of the Supreme Court  24 of Canada, as I understand it, that talks about  25 historical matters as evidence, and taking judicial  26 notice of historical facts.  And I believe it sets out  27 the different tests for history than it does in  28 relation to knowledge of current events, which must be  29 notorious before judicial notice can be taken of them.  30 If you get a chance as you go along to refer us to  31 that, that would be a help.  32 MR. GRANT:  I will, yes.  33 Now, if I can take you to paragraph 19, the trial  34 judge dismissed this 70 years of collection and  35 analysis.  And in paragraph 19 and 20 we refer to his  36 finding and, with respect, the appellants submit the  37 only correct part of the statement is that the oral,  38 body of oral histories is vast.  And I believe I  39 demonstrated to you that it is certainly not  40 uncharted, nor are they terra incognita.  They have  41 been well reviewed and analyzed by many, many scholars  42 in the field.  Not to say that is still -- not still  43 pursuing.  44 And as I refer you to in 21, the northwest coast  45 oral histories were collected over a 40-year period by  46 William Beynon, and was highly regarded by Barbeau,  47 Drucker and Duff.  And here Drucker and Duff, the 689  1 references are provided and they are exhibits.  2 I would like to just briefly refer you to paragraph  3 24, and refer you to the trial judge's reliance, at  4 page 180 -- I am not going to take you to it -- on a  5 statement by Bishop and Ray.  Now this was Dr. Ray who  6 gave evidence.  He, in an article advocating inclusion  7 of historical documents among research tools of  8 anthropologists and archeologists and discussing the  9 limitations of "memory ethnography". Their comments  10 were taken out of their geographic and temporal  11 context.  Now, I have just, as a note for your  12 lordships, Bishop and Ray is in the -- and I am not  13 going to take you to it -- is in the reference books,  14 at tab C-25, and it's Exhibit 1191A-47.  And I have  15 put in pages 116 to 128.  What you can see when you  16 look at that reference that the trial judge relied  17 upon, and what was significant, there is a couple of  18 points significant that we raise there, he is  19 talking -- they are analyzing the subarctic east of  20 the Rockies, where there was protocontact, that is,  21 indirect contact influence, for between 3 or 400  22 years.  That's what they were talking about.  That's  23 significantly different than here.  The second  24 significant point is that Dr. Ray was called to the  25 stand by the appellants, Dr. Ray was never questioned  26 by the respondents on this article.  He was never  27 asked anything about it by the respondents as to how  28 it applied, even though he was available, and then  29 they relied upon it and questioned other witnesses on  30 that point.  31 Now, in -- I refer you to paragraph 27, where Dr.  32 Daly refers to and considered the Bishop and Ray  33 article, and he directly in this reference here, and  34 in the material, he refers to the oral histories.  And  35 he was cross-examined on Bishop and Ray and whether he  36 relies on them.  He agreed with their cautions, the  37 cautions in analyzing oral history, and he said he  38 took them into account.  39 Paragraphs 25 to 32 of this factum deal with an  40 analysis of oral histories of the Iroquois.  William  41 Fenton, who has analyzed oral histories, unlike  42 Trigger, who is a learned historian but not a person  43 relying on oral histories.  Fenton did a careful  44 analysis of the Iroquois oral histories.  And I just  45 want to say that in these subsequent paragraphs,  46 paragraphs 28 to 32, he -- that is dealt with.  And  47 Dr. Daly, and I remind you that, of course, Dr. Daly's 690  1 evidence was, as we say, disregarded by the trial  2 judge for the reasons he set out and that Mr. Adams  3 referred to, but he, as a scholar in the field, came  4 to this conclusion regarding the Gitksan and  5 Wet'suwet'en oral history.  I am referring to  6 paragraph 33:  7  8 "The oral tradition is a worthy historical  9 source material when it is treated as a whole,  10 a corpus of linked and overlapping records of  11 events that have been reiterated down through  12 the generations.  Individual tellings of one  13 chief's history must be compared with one  14 another and then with the accounts of the same  15 or related events from the viewpoint of other  16 chiefs.  When this is done carefully, the oral  17 tradition can be treated as a valid historical  18 source."  19  2 0 And I want to make a comment on Dr. Daly in  21 response to Mr. Justice Lambert's question yesterday,  22 that Dr. Daly, his Social Sciences and Humanity  23 Resource Council grant, which was an independent grant  24 from the government, was to do research on West Coast  25 native tribes.  And that research, that project he had  26 was with respect to the Gitksan specifically.  So that  27 was independent of the work he was doing involved in  28 the case.  That was the work he got in 1988.  29 But what Dr. Daly is saying here is consistent  30 with Barbeau, Duff, Drucker, Jenness, and as I have  31 referred to, the more recent author.  32 I would like to now take you to what's key here,  33 and that is the question of specific lands.  The trial  34 judge accepted oral histories admissible in  35 principle -- I am at paragraph 34, my lords -- but he  36 found, erroneously, that:  37  38 "...they are not sufficiently precise as to  39 location to found a conclusion of specific  40 long-term occupation... [The events described]  41 could have happened almost anywhere."  42  43 And I would like to, with reference to that, take  44 you to R-24, and in specifics take you to tab C-36,  45 and if everything is as it should be, at the end of  46 that tab there is a sketch map of the Tenimgyet  47 territories which has some highlighting on it like 691  1 this.  2 LAMBERT, J.A.:  The volume number is?  3 MR. GRANT:  R-24.  I am sorry, my lord, R-24.  4 LAMBERT, J.A.:  Then the tab?  5 MR. GRANT:  Tab C-36, the last, very last page, so just before  6 tab C-39.  Here what I am referring you to,  7 geographically-speaking, is -- you have Gitwangak  8 here, you have the Skeena River going down here, this  9 small area of Tenimgyet here, this large area of  10 Tenimgyet there.  11 Now, when we advised the court we were going to  12 give evidence of oral histories, the court expressed  13 some concern, especially when Mr. Mathews, Tenimgyet,  14 gave I believe it was four different oral histories in  15 four adaawk over the course of two days, as to how  16 lengthy it would be, what we did is we exemplified  17 through an oral witness how it tied to geography.  18 Now, I am going to just summarize for you this map.  19 What his evidence is, and it's referred to at  20 paragraphs 35 and 36, and the transcript references  21 are all in the reference book ahead of this map.  22 Mr. Rush explained to you about this particular  23 adaawk, called Wii Hloots.  Now, this map, the trail  24 you see is in blue.  I have highlighted some of the  25 names along the route in yellow, and the outer  26 boundaries of both territories are in yellow.  If you  27 start on this map where at the far -- where the blue  28 line first is shown, the trail indicates that he and  29 his brother, Wii Hloots, he and his brother went out  30 and they followed that line all the way over to the  31 number four on the map, and under there, at the far  32 left in that territory, you see that name, it's down  33 in the corner.  That's where they hunted the Caribou,  34 they chased the caribou up to that place called  35 Loklo'obit, that's going along that outer boundary,  36 and that's where they caught the caribou.  They used  37 caribou traps which are described in the oral history  38 and that Loklo'obit is the island that Mr. Rush  39 referred you to where the man was buried in the later  40 part of the last century, that trespassed on the Nisga  41 territory.  This is where the brother killed Wii  42 Hloots, because they fought over the caribou.  This is  43 all described in the oral history.  He then travels  44 back with the caribou to his brother Tenimgyet at  45 Wilson Creek, and I am going to that territory on the  46 far right, the little triangular one I will refer to  47 as the Wilson Creek territory.  And then famine 692  1 arises, the man who killed his brother, they saw this  2 as a punishment, travels out again with his mother,  3 and he travels along this same route and he goes to  4 these places.  And what's significant here is that  5 these places are physical locations on the territory  6 told in the oral history, and they are specifically  7 located.  Mr. Mathews has been to them.  The first one  8 is that place on the map, An sagan tsaltwit.  They  9 were looking for a grizzly bear, because they knew  10 were the grizzly dens were, and these were markings of  11 grizzly dens on this map.  There was no grizzly there.  12 They were starving.  He continued to Gisak loot, that  13 other line, next to the blue, no grizzly there.  He  14 goes up to what's called Wilp dagan, and that's that  15 triangle there, he leaves his mother there and he goes  16 up along Luu lax sooxsit, which is again highlighted.  17 It's up in the north end there.  He finds a grizzly  18 there and he brings it back down and his mother has  19 died.  I am sorry, he doesn't find it there, he goes  20 along and over to Loklobit.  He finds a grizzly there,  21 brings it back to his mother who is waiting.  She has  22 died in the interim.  Then he burns the body and it's  23 described in the adaawk what he does.  And then he  24 goes back to his brother.  Now, what's significant  25 about this oral history, described in detail by Mr.  26 Mathews, is that geographic locations specifically at  27 places on the ground are described.  And that's what  28 is demonstrative about the oral histories.  With the  29 greatest of respect, the learned trial judge erred and  30 had to have disregarded the evidence.  31 Now, maybe he had the view, and he mentions that  32 the appellants did not put in a lot of these.  And  33 that was true.  We endeavored to try to demonstrate it  34 through this particular oral history.  But what we did  35 do, and I refer you to paragraph 38 and following, is  36 we referred to different -- 39 and following,  37 different oral histories.  And I apologize, my lords,  38 but if you could go back to R-22 just for a moment, I  39 had a sticky placed, a yellow sticky placed in the  40 middle of that tab 18, because I think it's  41 demonstrative of the situation.  And if you have that  42 in R-22, volume R-22, this is one of the oral  43 histories recorded in the 1920 -- in 1920 by William  44 Beynon.  There is a yellow -- there should be a sticky  45 at the top to show you.  It's at page 27, six -- five  46 green tabs into that big --  47 WALLACE, J.A.:  Is this reference noted in your factum? 693  1 MR. GRANT:  My lord, it is — no, it should be noted at  2 paragraph 39.  3 WALLACE, J.A.:  How would I note it?  4 MR. GRANT:  You would would note it as the —  5 WALLACE, J.A.:  R-22?  6 MR. GRANT:  R-22, tab 18, maybe page 27, and if you keep the —  7 because it's page 27 of this particular reference.  8 That would be the best way to do that.  And if you  9 kept it -- I had the sticky put in to make it easier  10 to find.  11 Now, if you go to next -- to the middle line.  Now  12 this is oral history of the Wolf Clan battle, which  13 Mary McKenzie -- it's summarized.  And Mary McKenzie  14 describes it in her evidence, which is referred to in  15 tab C-39.  It's the same oral history.  But if you  16 look here, you can see in the second paragraph down --  17 the third paragraph down:  18  19 "Nooks and his wife came up down to Ax lexh tsim  20 dehk village leaving Suuwiigos called Guywos.  21 Went up the mountain to hunt ground hog.  The  22 mountain was called Wii'tsomski."  23  24 And I have given Madam Reporter this reference  25 should go into tab 39.  I have given her the map which  26 is Exhibit 486.  And it —  27 TAGGART, J.A.:  That should go in at tab —  28 MR. GRANT:  C-39.  29 TAGGART, J.A.:  C-39.  And where?  30 MR. GRANT:  Probably at the back of that tab, my lord.  I can  31 arrange with the reporter at the break to put it in.  32 The point I would like to make about it, is if you  33 look on this map up at the top, up at the top left  34 hand corner, this is the Antgulilbix territory, and  35 you see Xsi Wis An Skit.  In 1920, Isaac Tens told  36 William Beynon the same oral history that Mary  37 McKenzie gave in evidence.  In the oral history in  38 1920 he described, he described a location that was  39 testified to in evidence in this case, and was marked.  40 In other words, this is exactly what these scholars  41 are saying, when you compare the early century's  42 descriptions of these oral histories to what's being  43 told today, they are remarkably alike.  What we are  44 talking about there, and I took the liberty of putting  45 stickies on here, is up in this area here is where the  46 Suuwiigos adaawk or oral history occurred that Mary  47 McKenzie describes.  The mountain that's being 694  1 described on that map is at this sticky here.  So you  2 have specific locations described here.  In the  3 following paragraphs of that section, I refer to  4 Martha Brown's evidence of the settlement for this  5 territory here, which is in the oral history.  6 Yesterday or the other day, Mr. Rush showed you David  7 Gunanoot's crest --  8 LAMBERT, J.A.:  When you say this territory here, it doesn't get  9 transcribed.  If you give the name it would help.  10 MR. GRANT:  Thank you, my lord.  I appreciate that.  I  11 overlooked that.  The reference that Martha Brown made  12 was to the Kliiyem Lax Haa territory at the very north  13 end, where I have made this marking.  And that's  14 described in the oral history.  The reference that Mr.  15 Rush made the other day to David Gunanoot, Nii Kyap,  16 was to this territory at Thutade, and that oral  17 history was described or referred to in evidence.  18 I refer there in the paragraph to -- I will give  19 you the paragraph reference in a moment -- to Stanley  20 Williams' description of how Luulak obtained his  21 territory at a place called Little Oliver Creek.  His  22 territory is specifically described in that oral  23 history.  24 With respect to the Wet'suwet'en, Madeline Alfred  25 described in the oral history particular lakes in this  26 vicinity of the Wah tah keg'ht territory around  27 Moricetown.  And that's referred to in the references.  2 8 And then I have given you the reference there to the  29 description of Nuu'tseni, or with the Wet'suwet'en at  30 the Goosley territory in the south, which is the  31 territory of Namox.  What I tried to show here by  32 these examples is that in each of those these cases,  33 and there are more, you show that the oral history  34 refers to specific geographic locations.  And as you  35 can see, it includes geographic locations outside of  36 the map drawn by the trial judge, Exhibit 5, and  37 outside in the south of the map drawn by the trial  38 judge in Exhibit 5.  With respect, I submit, the trial  39 judge was in error when he said the oral histories did  40 not refer to specific locations.  41 And I would ask you to note, there is another  42 reference, one green sheet ahead in that tab R-23, to  43 the Beynon note of the Miluulak territory, which I  44 have not put a sticky on, and the oral history of the  45 Bear Lake dispute with Miluulak, which would be this  46 territory right down on the eastern -- northeastern  47 boundary, the Miluulak territory. 695  1 Those references are in paragraphs 40 is the  2 Kliiyemlaxha reference; paragraph -- this is in tab  3 C -- paragraph 41 is the Luulak history; paragraph 42,  4 I referred you to these two references from Barbeau-  5 Beynon; paragraph 43 is the area of Moricetown;  6 paragraph 46 is the area on the Namox territory.  7 Now, the last section here is in reply to the trial  8 judge's answers on historical references.  He  9 argued -- he suggested and adopted an outline of the  10 province that they filed at -- guns, moose, the  11 Hudson's Bay were historic references.  The argument,  12 I submit, is clear.  I just want you to note that at  13 paragraph 49 I have added the evidence of Dr. Daly,  14 Tr.185, pages 11906 and 11907.  And that's Dr. Daly's  15 evidence on that point that Dr. Daly, Miss Marsden and  16 others rely on the historical references.  There is no  17 suggestion that the oral histories ended at contact.  18 In fact, to the contrary.  19 Paragraph 51 I deal with the moose and principally  20 the point is that the moose have been around in North  21 America for 10,000 years, and there is fossil remains  22 of moose found near this area at least a thousand  23 years old.  And Dr. Hatler explained that the  24 historical records suggest the moose may have been in  25 the area of this territory before 1800, left and came  26 back.  27 Paragraphs 52 and 55 deal with the reliance on  28 Legaic, and Legaic was -- there were at least four  29 Legaics, both pre-contact and post-contact, so it  30 doesn't help at all.  Schedule four, which he put in  31 his judgment from the province's argument, with  32 respect, does not dispute, does not answer the issue.  33 Your lordships, the Duff reference in terms of  34 Barbeau's misreading of the dating is at paragraph 60  35 here, Exhibit 9.  And it would be at C-60.  36 I just take you to paragraph 71 and ask you to  37 refer there to the Supreme Court of Canada decision in  38 Simon, in which the Supreme Court of Canada pointed  39 out that:  40  41 "The Micmacs did not keep written records.  42 Micmac traditions are largely oral in nature.  43 To impose an impossible burden of proof would,  44 in effect, render nugatory any right to hunt  45 that a present day Micmac Indian would  46 otherwise be entitled to invoke..."  47 696  1 I submit that, in conclusion on this point, is  2 that the learned trial judge erred, and I set it out  3 in paragraph 74, in failing to accord the oral  4 histories any weight.  5 TAGGART, J.A.:  Could you give me the reference to the Simon  6 case, please?  7 MR. GRANT:  The Simon case?  8 TAGGART, J.A.:  Yes, where is that found in the volumes?  9 TAGGART, J.A.:  It's referred to in paragraph 70 but —  10 MR. GRANT:  Yes, I see that the A reference is not in the  11 volumes.  A-l, tab 20.  12 Now, my lords, if I could I would like to move  13 straight into -- I will not be referring further to  14 Appendix "C".  I would like to move to tab 5.  And I  15 will be referring very, very briefly only to a couple  16 of the references in R-ll and R-12, which you have.  17 This is not in the factum itself, my lords.  18 This argument goes to the issue of the appellants'  19 social and economic organization did extend beyond the  20 villages and was not the product of the fur trade.  21 And I refer you at page -- at the beginning of tab 5,  22 paragraph 504, to the trial judge's findings with  23 which we are taking issue.  My first point here is,  24 and I think this is an important point, you may  25 wish -- it's apparent in paragraphs 505 and 506, is  26 that this is an alternative argument.  We say we don't  27 have to prove a long, long time test, but if you find  28 that the trial judge was right in terms of this long,  29 long time test, we say we have proven it.  First of  30 all, and most importantly, this is an alternative, if  31 you find that the long time test is necessary.  32 LAMBERT, J.A.:  I am not sure I understand that.  Your position  33 is that you have to show it before sovereignty, before  34 1846?  35 MR. GRANT:  That's right.  36 LAMBERT, J.A.:  So your position is then that as far as trapping  37 is concerned, that trapping is before 1846, at least  38 to the extent that it is before 1846, it confers the  39 rights you are asserting rather than otherwise?  40 MR. GRANT:  That's correct.  41 LAMBERT, J.A.:  But, before, when we discussed this the other  42 day, we said that there are -- there may well be  43 relevance to the before contact events, as well as the  44 before sovereignty events, for different purposes.  45 So, I know that the trial judge says a long, long  46 period before contact.  But what you're talking about  47 in this is, presumably, immediately before contact. 697  1 That is, you are saying that there was evidence of  2 social and economic organization beyond the villages  3 that was not the product of the fur trade and was in  4 existence before contact?  5 MR. GRANT:  That's right.  You remember the trial judge in map 5  6 cut off the north and the south, on the basis that  7 those territories became important at the time of  8 contact.  If you accept that what territory did the  9 appellants have at the assertion of sovereignty, even  10 on his findings we have established that.  We say that  11 the far north and the far south.  But if you say we  12 want to see what happened before contact in terms of  13 the nature of the rights, this is -- this deals with  14 that point.  15 LAMBERT, J.A.:  Yes.  16 MR. GRANT:  Now, I would just like to say that also with respect  17 to paragraph 504, the finding of the trial judge at  18 page 434 of his judgment is germane, where he made the  19 comment that:  20  21 "The social and economic organization of these  22 people was likely a response to the fur trade  23 which I have already discussed."  24  25 And he is talking there with reference Goldman,  26 Stewart, Kobrinsky, Jenness, Robinson and Father  27 Morice.  And I want to point out that in fact these  28 people's theory was that the social organization moved  29 from the coast inland, which is a hotly-disputed  30 issue.  As Mr. Adams said yesterday, that's really not  31 an issue, an academic issue that you have to make a  32 legal finding on.  But it was characterized, it was  33 characterized by the province that if the social  34 organization moved from the coast inland it moved in  35 with the fur trade.  And as Mr. Adams said with  36 respect to Jenness, and I will show with respect to  37 Morice, Father Morice, in fact they said the social  38 organization moved inland.  Those two did not say that  39 it arose out of the fur trade.  They just said that it  4 0 came in that way.  41 Now, at paragraph 505, the Pasco reference should  42 should be to page 412, just for your own narrative.  43 TAGGART, J.A.:  412?  44 MR. GRANT:  412, yes.  45 Taking you to paragraph 507, I point out the trial  4 6 judge's finding that:  47 69?  1 "There was no need for the Indians in early  2 times to go very far for such purposes and I  3 know of no reason to suppose they did."  4  5 And we submit that he was wrong in fact and law,  6 to find European influence in the form of the fur  7 trade was responsible for presence on distance  8 territories; wrong in fact and law to find that the  9 fur trade quickly transformed social organization; and  10 wrong in law to hold that they have no aboriginal  11 rights in respect to those territories.  12 Now, the first area in section B, I set out in 509  13 A, B and C, the three main points.  Going to A -- or I  14 mean B, the land tenure, feasting and trade, I would  15 just like to refer you to Dr. Ray's opinion, which  16 is -- which was not directed to you before, in  17 paragraph 512.  He says at line ten of page 224 of the  18 factum:  19  20 "I still would submit that even 40 years is  21 probably premature, is not long enough, given  22 what we are talking about.  We are not just  23 talking about little cultural details, the  24 adoption of a pot or a gun or a knife.  We are  25 talking about a fundamental social/political  26 organization."  27  28 Now, my lords, with the greatest of respect, the  29 theory advanced by the province, through Dr. Robinson,  30 and apparently accepted by the trial judge, is what I  31 would, with respect, call a Coca-Cola bottle theory.  32 For those who have seen the movie The Gods Must Be  33 Crazy, it's that when something drops in from the sky,  34 an iron pot or a coke bottle, all of a sudden the  35 social organization changes. The first pot, the first  36 gun, the first disc or maybe the 10th or the 100th,  37 changed the social organization.  What Dr. Ray and  38 what other -- and Mr. Brody, I will refer to in a  39 minute -- say, is it couldn't have happened in 40  40 years.  It just couldn't have happened.  You can't  41 have such a revolutionary changes of a social  42 organization in such a short period of time.  43 And I refer you to Mr. Brody's comments at  44 paragraph 515, where he says:  45  46 "It would take a very long time for an  47 institution as complicated as that to establish 699  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  WALLACE,  16  MR. GRANT  17  18  HUTCHEON,  19  MR. GRANT  20  21  LAMBERT,  22  23  24  25  26  MR. GRANT  27  28  LAMBERT,  29  30  31  32  33  34  MR. GRANT  35  36  37  LAMBERT,  38  MR. GRANT  39  40  41  42  43  44  LAMBERT,  45  MR. GRANT  46  47  LAMBERT,  itself at the centre of an another culture's  way of organizing itself."  And you see that, just for your note, you may note  the Morice references at tab 514, I am not going to  take you to it, but at the top of page 225, Dr. Ray  refers to the system ethnographers began to describe  with Morice some 60 years later, is a system that  essentially Brown has just given us the bone outline  for in 1820.  What I have added there is -- what I  have added there is that Morice -- I have put in the  Morice reference there where he talks about that they  had ownership.  And I have put that reference in the  authorities so that what --  J.A.:  Where are you now?  :  At line four of page 225.  You see where Dr. Ray's  referring to Morice's opinion?  J.A.:  Where did you put it in?  :  It's at tab 514 of the reference book, the Morice  reference where he talks about it.  J.A.:  Can I ask you, I remember being shown maps with  village sites marked on them, but I don't remember  that those maps encompassed the whole of the area  that's encompassed by the map that's standing up on  the board.  :  Are you referring to the McDougall map, that sketch  map of the --  J.A.:  Yes, that's the only one I think that does have  village sites, and it's only an area of this.  That  is, it would be easier to understand this argument if  there were a map of the whole territory that showed  all the village sites on it.  Perhaps there isn't such  a map.  :  Well, I was intending to take you to the McDougall  map and show what it really does refer to in terms of  the village sites in conjunction with that map.  J.A.:  How big an area is covered by the McDougall map?  :  The McDougall map, my lords, I have -- I took the  liberty of having added to your appellants' maps, at  the very last tab, the McDougall map and an enlarged  version of it, and if you take a look at it -- the  McDougall map only covers the Wet'suwet'en  territories.  So it's from here down.  J.A.:  To the bottom?  :  To the bottom.  And it goes all the way to Ootsa  Lake, which is at the very bottom here.  J.A.:  All right.  I don't want to take you out of your 700  1 argument, I just want to know what you have.  We don't  2 have anything for the Gitksan territories showing the  3 village sites and their distribution throughout the  4 whole territory.  5 MR. GRANT:  No, we don't, except -- and the evidence -- because  6 the Gitksan did not use winter hunting villages, as I  7 referred to, like the Wet'suwet'en did, you have  8 principal villages.  One of them -- and they are shown  9 on the trial judge's map five, as I recall.  One is at  10 Gitangas, then you have the one at Kisgagas, and there  11 is a series of villages that Brown found along the  12 Babine River.  They are going along the Babine and up  13 to the junction.  Then he describes villages down to  14 the forks and another three villages.  But, my lord,  15 there is not evidence -- that description of Brown is  16 not mapped in evidence where those are.  17 LAMBERT, J.A.:  We have got to understand why and for what  18 purposes the house would use the territories at the  19 north end, that they would be a long way from where  20 they were at any time of the year.  21 MR. GRANT:  Yes.  But what we say, and this is what the argument  22 in this tab endeavours to establish, is that it's  23 because of the multiplicity of resources that they  24 required that they would travel to the north end, not  25 just fur-bearing resources.  And that goes directly to  26 the question of the trade.  And this is where, with  27 respect, the trial judge was in error where he says it  28 was subsistence when he means for or survival or  29 rudimentary, because once you have trade, what you  30 have is gathering surplus.  You're getting surplus,  31 whether you use it for cash economy commerce is based  32 on surplus.  To access that surplus, as these maps,  33 the resource maps show, they had to have access to  34 widespread areas.  That's part of our submission.  35 That, combined with the evidence of what the first  36 traders saw that they were doing and what they had,  37 the combination of the resources were there for them  38 to be had.  That's what Dr. Hatler and Miss Housser  39 described, the first trader said, when we got here  40 they were using all these resources, they had to go  41 further afield than just adjacent to the villages.  42 You see, Dr. Hatler -- let's just take the mountain  43 goat, for example, it's referred to in this tab, my  44 lord.  Dr. Hatler says the evidence of the prevalence  45 of the mountain goat throughout the area at contact  46 demonstrates that this resource was not over-  47 harvested in any of these areas, but it is very 701  1 vulnerable to being over-harvested.  If, for example,  2 they harvested all the mountain goat by the villages  3 there would have been none left there.  But there was.  4 And his conclusion is that they had to have been able  5 to harvest -- there was some kind of conservation  6 method.  Then you go to Brown and Brown says, well,  7 they certainly were using the mountain goat.  You go  8 to Dr. McDonald in the map atlas, the Historical Atlas  9 of Canada, and what was the principal thing the  10 Gitksan were trading?  It was goat skin blankets to  11 the coast for coastal goods.  So you suddenly see,  12 just taking any one resource, that they had to be able  13 to access over a wide area.  They could not access in  14 a concentrated form without depletion of the resource.  15 LAMBERT, J.A.:  Thank you.  16 MR. GRANT:  Now, I refer you -- and that the institution at  17 paragraph 16, 516, that Brody is referring to, is  18 found in Feasting - the practice of travelling to  19 distance villages, et cetera, you have heard all that  20 evidence and we have reiterated it with respect to the  21 resources in paragraphs 516 right through to  22 paragraphs 522 or 521.  And in 521 and 22, we refer to  23 the evidence that they had resources for trapping  24 the -- they used traps before there were European  25 traps.  This is discovered by Harmon in 1810 and  26 Fenton in 1825.  Paragraphs 523 to 528 demonstrate,  27 through the historical evidence, as well as through  28 Dr. Ray, that even as late as 1833, the Gitksan had  29 very little -- I am quoting from 524, Simon  30 McGillivray, "...very little of European goods among  31 them."  And he never saw Indians so destitute of  32 European manufacture.  He said similar comments about  33 the Wet'suwet'en.  34 In 527, we refer to Dr. Ray's evidence about the  35 dearth of European goods as observed by Bount and the  36 relative independence of the Gitksan and Wet'suwet'en  37 from reliance on such goods.  38 I would like to take you to 529.  In the face of  39 this evidence that I have referred to, the trial judge  40 concluded that the fur trade had:  41  42 "...converted and materially changed the life of  43 the Gitksan and Wet'suwet'en in the short time  44 between the advent of European influence and  45 the early years of the century and the start of  46 Brown's observations in 1822."  47 702  1 He nowhere referred to Harmon's observations a  2 dozen years earlier.  This proposition is so unlikely  3 on the facts that it was soundly rejected by the  4 historical geographer, Prof. Ray, and the  5 anthropologists, Drs. Daly, Mills and Brody.  And,  6 with respect, the trial judge mis-characterized the  7 theory of coastal influence on social organization  8 with -- coastal influence being fur trade -- derived  9 coastal influence.  10 Now, at 530, paragraphs 530 to 543, and you heard a  11 little yesterday about Dr. Robinson.  Dr. Robinson's  12 speculative theory, and it's her own term, it was  13 speculation, was quoted at 530, that:  14  15 "Classic patterns of Gitksan and Wet'suwet'en  16 resource use and ownership are post-contact  17 phenomena."  18  19 And I refer there back to the reasons at page 434.  20 And I just want to say, as set out in 531, that Dr.  21 Robinson, who, my lords -- I just will summarize  22 what's said in these paragraphs -- she did not study  23 any of the maps, Exhibit 358 that you have before her,  24 even though they were provided to her. She hadn't  25 looked at them.  She didn't look at any of the Brown  26 records, except, as I recall, two extracts reflected  27 in her evidence.  She didn't do any of the analysis of  28 all of the records, such as Dr. Ray did.  She didn't  29 do any of the analysis or any ethnographic work.  And  30 Mr. Adams referred you to the rest of it.  31 She, in her own evidence, was, I submit, an  32 advocate for the province.  She stated in her early  33 letters that she would assist in marshalling -- and  34 this is referred to in appendix E, paragraph 124 --  35 she referred to the fact that she would assist the  36 province to marshall an army of support against the  37 Gitksan theory.  That was early on.  That was her  38 approach.  39 Now, the trial judge accepted Dr. Ray on this  40 point, at paragraph 534.  He called the Bay records "a  41 rich source of historical information" and he had no  42 hesitation accepting information in them, unlike Dr.  43 Robinson's theory that they were relatively new.  44 Now, if I can take you to paragraph 544 of this  45 factum here.  As I said in answer to basically this is  46 the bio-physical evidence established that the  47 resources required to sustain pre-contact Gitksan and 703  1 Wet'suwet'en economies were widely distributed  2 throughout their territories, in some cases nowhere  3 else but great distances from their villages.  I am  4 here referring to the map atlas.  And I just want  5 to -- maybe your lordship's can make a note.  I don't  6 want to go through them all here, but I am worried  7 because of the effect of Exhibit 358-22, that I am  8 going to come to very briefly, but all of the other  9 maps, except 22 and 23, the commentary is part of the  10 evidence, all of the other --  11 HUTCHEON, J.A. :  Except for 22 and 23?  12 MR. GRANT:  Yes.  And, my lord, in the index to the map atlas  13 you have, we have got that marked that -- 358-22 and  14 23 is without editorial comment.  So all of the rest,  15 the whole commentary is there, is part of the  16 evidence.  17 HUTCHEON, J.A.:  I see.  18 MR. GRANT:  Now, the trial judge, at 546, did not really refer  19 to the bio-physical evidence except to say none of the  20 wildlife evidence is unequivocal.  Now, Dr. Hatler, in  21 analyzing that wildlife evidence, refers to 1860, but  22 his evidence goes back to archaeological finds of  23 these resources.  What's significant, except for the  24 mountain goat, which he concluded it must have been --  25 and in the evidence it demonstrates the hunting  26 practices, you do the de-boning of the mountain goat  27 on the mountain, not down at the village site.  But  28 caribou, marmot, beaver, these are the resources, are  29 all found dated 3500 years ago at Kitsalas Canyon,  30 which is just outside the territory, a major  31 archaeological find at Kitsalas Canyon.  32 Now, I would like to take you to paragraph 549, and  33 this is in answer to Mr. Justice Hutcheon's question,  34 and I have an insert that I provided to Madam  35 Reporter.  Instead of going to the reference like I am  36 going to do, you could refer to the insert, and it  37 goes in -- it will go in R-ll, tab 549.  And I will  38 assist in getting it placed in there at the break.  39 This is the evidence of Mr. Mathews.  It is not the  40 only evidence about boundaries, but it is one  41 evidence.  I provided copies of this.  It should go at  42 the front of that tab.  43 TAGGART, J.A.:  The first document in that tab?  44 MR. GRANT:  Yes, it could be the first document in the tab.  I  45 would just like to go through this with you because it  46 does show the complexity of the organization.  The  47 bottom of page 4767, it is the first page, I refer him 704  1 to earlier questions.  2  3 "Now when you looked at Exhibit 31..."  4  5 This is the map of fishing sites.  6  7 "Q    "...and what you have just described indicates  8 that you have fishing sites along the river  9 where your territory is located and on the  10 other shore the river?  11 A   Our rights only include those fishing sites but  12 does not go over the bank.  It belongs to  13 somebody else.  Just our sites I mentioned  14 belong to us."  15  16 Now he is describing here where he has a fishing  17 site in the territory of another chief, the only right  18 he has -- his house has, is to that fishing site.  19 This is with respect to map 358-22.  20  21 "Q   What shore are you talking about?  22 A   Both banks."  23  24 Then I refer down to the smokehouse.  Then I go:  25  26 "Q   My question to you is in that area under  27 Gitksan law you described fishing sites that  28 you have on the left bank and on the right  29 bank.  Now looking downstream on the right bank  30 have you described that; is that right?  31 A   Yes.  32 Q   Who under Gitksan law owns the middle of the  33 river between the fishing sites on the right  34 and left bank?  35 A  We say we own the whole.  Where it goes across  36 if covers the middle, there is no opening  37 there, it goes across to the bank on the other  38 side."  39  40 And he is talking about the opposite shore.  41  42 "Q   Is that your boundary?  43 A   Yes.  44 Q   Is that understood by other chiefs?  45 A   Yes.  46 Q   That that's your territory?  47 A   Yes. 705  1 Q   Do you know, does that apply to other Gitksan  2 territories in the western part of the Gitksan  3 territory?  4 A   Yes, they apply -- only it doesn't apply when I  5 was showing you the photos of Tsihl Gwelii when  6 I claim one side and Gisax iit..."  7  8 This is the Tsimshian.  9  10 "... on the other side then you don't claim the  11 whole river.  12 Q   Do you claim any part of the river?  13 A   Yes, you might then split the river in half."  14  15 Now here the court interjects to clarify this.  16  17 "THE COURT: Well, then you are saying this applies  18 to the Skeena, but not to other rivers?  19 A   Yeah, where any kind of river, your lordship,  20 if you have fishing sites on both sides  21 naturally you own right across.  But when you  22 just claim one side, then just that bank side.  23 Q   Well, in that case where you only claim one  24 side and another house claims the other side,  25 what chief or chiefs claim the middle?  26 A   I would claim the middle half on my bank and  27 this guy would claim the bank on the other  28 half.  29 Q   So the river would be divided?  30 A   Yes.  31 THE COURT:  So there is a difference between river  32 as a boundary and river as a fishing site?  33 A   Yes.  34 THE COURT:  In other words, if a river is a  35 boundary between two houses the real boundary  36 is the middle of the river?  37 A   If they were opposite banks from each other,  38 yes."  39  4 0 Now going two pages over, comes to the example and  41 I put the whole extract in, because he talks about his  42 own house owning fishing sites.  43 Now at line 29 at page 4771, he is talking about a  44 fishing site owned by we Wii hlengwax and Lelt and the  45 territory around it by Wii hlengwax.  And he says:  46  47 "Q   And they are both Frog chiefs from Gitwingax? 706  1 A   Yes.  2 Q   They both form part of your 'Nii Dil?  3 A   Yes.  Likewise if it was inside our territory,  4 if you see Ax tii hiikw..."  5  6 That's a chief in his house,  7  8 " will be the same thing what I am trying  9 on get across.  If you have Ax tii Hiikw name  10 mentioned here, there is no problem because me  11 and him are side by side and we are chiefs in  12 the house, in our house."  13  14  15 So there is no problem if it's in the same house.  16  17 "Q   Okay.  But which house would own the river  18 there, the house of Lelt or the house of Wii  19 hlengwax?"  20  21 The territory is Wii hlengwax's, the fishing  22 site is Lelt's. It's explained.  23  24 "A   The house of Wii hlengwax.  25 Q   And would the house of Wii hlengwax own the  26 river on both sides?  27 A   Yes.  28 Q   And that would be recognized by the other  29 Gitksan chiefs?  30 A   Yes."  31  32 The law with respect to the boundaries, as it  33 applies to fishing sites, and this evidence was not  34 disputed by others, that law is that the fishing site  35 is owned but the rest of the river and the territory  36 is with the house territory.  And that's the evidence  37 of Mr. Mathews, and that's the evidence that Mr.  38 Morrell endeavoured to summerize in the commentary  39 that was excluded.  40 Now, I can just advise your lordships that the  41 balance of this section is tied to those maps.  And I  42 would ask you only to note a couple of points, and  43 that is that the evidence -- that at paragraph 554, I  44 refer to Exhibit 887, and it's an added insert there,  45 and I would ask you to review that.  That's Dr. Daly's  46 references to resources based on the oral histories,  47 the resources used from throughout the territory.  I 707  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. GRANT  would then like to highlight for you, at paragraph 563  to 565, the evidence of caribou traps, caribou traps  that were pre-contact, and that's described by Pete  Muldoe at 565.  The balance of this part of the  argument deals with specific resources, including the  berries, which are referred to in Exhibits 358-3 to  358-9, and that's in your map atlas.  And all of that  commentary is included.  And then the medicines  referred to by Dr. Daly, rocks and natural resources.  And I only want to point out with respect to  paragraphs 578 through to paragraphs 581, that the  evidence that's in those references, my lords,  demonstrate that these resources were site-specific,  they are not throughout the territory.  And if fact  there were special laws, recognized in the  Wet'suwet'en case by the Wet'suwet'en, in the Gitksan  case by the Gitksan, that other houses and chiefs  could access them but they had to pay the owner of the  territory.  And that's reflected in the evidence of  Alfred Joseph in 578 and 579, and in Mary MacKenzie in  581.  And those citations are given.  I ask you when you consider exhibit or paragraphs  583 to 584, the Wet'suwet'en resources, to look at the  McDougall map at the back of your map atlas, because  that map shows how the Wet'suwet'en went out on the  territory and the trails.  And that map, of course,  was the one not a political statement, but their  descriptions to McDougall of where they were going.  With respect to the question of pre-contact trade,  I would like to highlight for your lordships -- I  would like to find out -- point out to your lordships  paragraph 587, where the Supreme Court of Canada held  in Horsman that Indian people have aboriginal rights  to carry on commerce or commercial activity is or  becomes an integral part of their way of life.  And  the trial judge dismissed the trade in the territory  as mere bartering in sustenance goods.  J.A.:  Excuse me, wasn't Horsman based on a treaty of  1890?  :  The Horsman case was based on a treaty and the  relevance of the treaty, my lord, in our submission,  is that the treaty tells you the time in that case at  which the rights are looked at.  And in that case, Dr.  Ray's evidence, I believe, that there was certainly  commerce in the goods at the time, so that here, of  course, the date we are arguing is 1846, because there  is no treaty.  So that's the difference. 70?  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.:  So that that becomes — it doesn't mean 1910 or  anything like that.  Your statement is where  commercial activity is or becomes, and that's what I  am querying.  MR. GRANT:  Here, of course, the evidence -- if you decide  that -- and I say that the trial judge erred here,  because the commercial activity was -- and this  section deals with that trade -- but that the  commercial activity became an important event after  1820, we say, still the key time is 1846  HUTCHEON, J.A. : After 1820, up to 1846?  MR. GRANT:  Yes.  But we say that the commercial activity was  very active before. And I would like to conclude the  section, because the argument is there, by taking you  to the one map that really demonstrates that from the  1987 publication The Historical Atlas of Canada. And  for convenience, your lordships, I have put in at the  end of your map atlas as well in the folder, if you  could just take that one out, I will quickly refer you  to that.  It's at the very end of the last tab.  MACFARLANE, J.A.:  Which map?  MR. GRANT:  It's this map here out of the map atlas?  MACFARLANE, J.A.:  Where is it?  MR. GRANT:  My lords, we did -- we did provide the judge with  this, so that he could see the map.  It's a little  larger that you can see in the original atlas. This  was published in 1987.  If you just look at this for a  moment --  TAGGART, J.A.:  Is this headed "The Coast Tsimshian"?  MR. GRANT:  Yes, approximately 1750.  But if you look up in the  upper middle you see Gitksan, right in the top there?  TAGGART, J.A.:  Wait until I get the first thing out.  Okay.  MR. GRANT:  And in the chart you see trade goods and trade  routes, and I just want you to note, I have done this  for you, at least on my copy, when you look at the  trade goods and trade routes, they are listed by  number and the trade routes are there.  And I am going  to mark -- tell you the numbers that are -- that move  into and out of the Gitksan and the Wet'suwet'en area.  Number 1, number 2, number 7, 8, 9, 10, 11, 12, 13 and  14, are all trade routes into and outside of the  Gitksan and the Wet'suwet'en area.  And if you look  under the boundary there on that map, you see 10, 11  and 12, those are all going into the Wet'suwet'en  territory.  And the Wet'suwet'en territory is not  separately marked on this.  Now if you go to -- because that's a reduction, if 709  1 you go to paragraph 614 of the factum, at page 254, it  2 refers to and quotes this.  Dr. Ray referred to this  3 map in his evidence.  And that's quoted at paragraph  4 613.  But we have taken an extract from the legend on  5 the map, and it's in paragraph 614.  Now, this is  6 George McDonald, Gary Coupland and David Archer, three  7 scholars who were retained on this project, which was  8 a major national project.  It covers all of Canada.  9 And they say, regarding the Gitksan:  10  11 "On the eve of European contact, the Tsimshian  12 had lived along the Skeena and Nass Rivers and  13 adjacent the north Pacific coast for thousands  14 of years.  There may have been 10 to 12  15 thousand Tsimshian in three linguistic and  16 cultural groups.  The coast Tsimshian, the  17 Gitksan and the Nisga.  The Tsimshian depended  18 on the intensive exploitation of salmon,  19 supplemented by other fishing and by hunting  20 and gathering.  For at least part of the year  21 they lived in villages and their economies  22 relied on regular, seasonal migrations to other  23 locations for specific resources.  All  24 Tsimshians were members of hierarchical kinship  25 groups in which status differences were  26 inherited.  Kinship groups from the same  27 village owned contiguous territories for  28 fishing, hunting and gathering.  At elaborate  29 potlatches the giving of luxury goods validated  30 status and title.  The system was financed by  31 the corporate, that is, the kinship group."  32  33 In anthropological terms that means a kinship  34 group.  35  36 "Production of surplus goods that could be  37 exchanged or traded over long distance.  38 Raiding for property and slaves was common."  39  40 I would just ask you to make a note, going back  41 five pages to page 250, of Chismore's contract that  42 Mr. Rush referred you to.  When you see what Chismore  43 described in 1870 terms of the detailed trade trail  44 and the trail, basically worn out of the rock, how  45 long -- out of solid granite by the feet of succeeding  46 generations, you can see that this trade was not  47 something recent, not something new, it was something 710  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  that had been going on a long, long time.  And, as I  say, these are independent scholars who came to this  conclusion, completely outside of the ambit of this  case.  I would ask you as well to highlight and refer to,  when you have an opportunity, Dr. Daly's figures seven  and eight.  They were cited and referred to in  paragraph 615.  J.A.:  Before we leave this map, where would they get  their boundaries for houses?  Sorry, on this map?  J.A.:  Yes, Gitksan.  Aren't they boundaries of the  houses in there?  No, this -- these boundaries here -- no.  The  boundaries here are of the Gitksan territory.  That  dark line, you see?  Sorry, the lines on the map are  the boundaries of the houses.  J.A.:  That's what I am asking, where --  I am sorry, of the territories.  I see what you're  referring to.  What they have done is they have drawn  approximately boundaries of the villages.  I see what  you're referring to.  There is the thinner line --  J.A.:  Well, Kitwancool is shown as a village and then  there is a territory described as Kitwancool.  Yes.  What he is referring to there, the quote that  I gave you, he is referring to the village  territories.  He is saying kinship groups from the  same village own contiguous territories for fishing,  hunting and gathering.  J.A.:   Well, that's what the trial judge said didn't  happen.  That's what -- that's why I wonder where they  got this information.  What was the basis for Mr.  McDonald, and the others, using these boundaries?  MACAULAY:  My lord, this document, this exhibit was not  marked for the truth of its contents.  HUTCHEON, J.A.:  Was not marked for the truth of the contents?  MR. MACAULAY:  I have a copy of page 12020 of volume 186 of the  transcript.  And it refers to the -- this map,  historical atlas.  Mr. Grant asked that the  document -- that's the map -- be marked as an exhibit,  and Mr. Willms then said:  "My lord, if it is being marked just as  something that the witness can identify, that's  fine.  But if it's being marked for the truth  of the contents, I object."  HUTCHEON,  MR. GRANT:  HUTCHEON,  MR. GRANT:  HUTCHEON,  MR. GRANT  HUTCHEON,  MR. GRANT  HUTCHEON,  MR. 711  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  And the court said:  "Well, it  Grant?"  can only be the former, can't it, Mr.  Mr. Grant said "certainly."  HUTCHEON, J.A.:  What does he mean the former? What does that  refer to?  MR. MACAULAY:  Marked as something the witness can identify.  HUTCHEON, J.A.:  You mean that this is a book?  MR. GRANT:  I can respond to that now, and it's right in the  factum.  My friend may have overlooked this.  Dr. Ray,  who was called as an expert by the plaintiffs, adopted  this map, he adopted it as part of his opinion and  that's set out in paragraph 613.  HUTCHEON, J.A.:  This is so contrary to the trial judge's  findings, and that's why -- at least it seems to me it  is -- and that's why I am pausing over it.  It says  circa 1750.  So I assume this is supposed to reflect  what's happening in 1750.  MR. GRANT:  Right.  HUTCHEON, J.A.:  And we have boundaries shown in the Gitksan  territory, not villages only.  MR. GRANT:  Well, what the trial judge —  HUTCHEON, J.A.:  Am I misreading this document?  MR. GRANT: Well, when we deal with the territories  back to it, but I can just tell you this,  what the trial judge had trouble with, and what the  trial judge did not accept, were the internal house  boundaries.  HUTCHEON, J.A.:  I know he didn't.  He said that the only  territory they had were the villages.  That's what he  said.  MR. GRANT: The trial judge said the villages and adjacent areas  which is what this argument goes to, that he was wrong  on the evidence on that point.  HUTCHEON, J.A.:  But the adjacent areas, isn't this what's  described here?  MR. GRANT:  Exactly, my lord.  In terms of the trial judge's  findings, his adjacent areas were something unclear  but in the vicinity.  But map 5, my lord, shows that  he adopted, substantially -- in fact, if you look at  this map, he concluded that all of the area in this  map marked as Gitksan would be an area covered by  aboriginal rights in map 5.  He made that finding in  terms of what he described the option of map 5.  He  I will come  my lord, 712  1 excluded area south of the Wet'suwet'en.  2 HUTCHEON, J.A.:  Yes, you told us that.  3 MR. GRANT:  And the north.  But I am talking about the trial  4 judge's map 5.  5 HUTCHEON, J.A.:  I must have a different impression, wrong  6 impression of what the trial judge found.  I thought  7 he said it was only the villages that were affected by  8 the ownership.  9 MR. GRANT:  He went to this map, and I am sorry I don't have --  10 it is unrecorded.  But map five where he dropped this  11 out, you see he goes up north of Gitangas and he goes  12 up -- and cuts off part of the south area.  13 HUTCHEON, J.A.:  I have got that, but what about the internal —  14 MR. GRANT:  He said there were aboriginal rights, this is the  15 area that it's covered by.  And of course he narrows  16 what those rights are.  17 LAMBERT, J.A.:  Are you saying this is on the basis that his  18 finding is wrong about the nature of that aboriginal  19 rights, isn't this an alternative on the assumption  20 his findings about aboriginal rights are wrong?  21 MR. GRANT:  About extinguishment.  22 LAMBERT, J.A.:  About extinguishment, is it?  23 MR. GRANT:  That's right.  24 LAMBERT, J.A.:  His finding about aboriginal rights is not that  25 they are confined as far as interest in land is  26 concerned to village sites and areas contiguous to  27 village sites.  A misunderstanding I have, and it may  28 be shared by my colleagues, is that the trial judge's  29 finding about aboriginal rights is a finding that  30 aboriginal rights exist, but whatever they are, they  31 are, in territorial scope, confined to village sites  32 and the areas immediately contiguous to the village  33 sites.  34 HUTCHEON, J.A.:  That's my understanding.  35 MR. GRANT:  Right.  That's one of his findings, yes.  36 LAMBERT, J.A.:  If that's a finding then that whole area that  37 you show as dark shaded is not represented by the  38 trial judge to be the area of where aboriginal rights  39 exist.  What he is saying is that outside that area  40 they don't exist, and in that area, subject to his  41 finding about this extent of them, they may exist.  He  42 is not saying they do exist in that area.  43 MR. GRANT:  He was dealing, as I recall, with the aboriginal  44 subsistence activities that could go on, and he said  45 they would not have to be confined to what he found  46 immediately adjacent to the villages.  And then he  47 refers to this map 5 as his alternative that he takes. 713  1 So that when he does that fiduciary, he talks about  2 that area in terms of subsistence activities.  It does  3 not go -- those activities could be going on in larger  4 areas.  5 LAMBERT, J.A.:  But this is all in the latter part of his  6 judgment.  7 MR. GRANT:  Yes, it is an alternative.  8 LAMBERT, J.A.:  And, to my view, I have always thought of it as  9 being an alternative, that finding, based on the  10 assumption that he wasn't right in the earlier part.  11 MR. GRANT:  Right.  The only point, my lord, Mr. Justice  12 Hutcheon, I want to be clear, is that the -- is that  13 the boundaries on Exhibit 893, which I refer to  14 what -- that Dr. Ray adopted as part of his opinion,  15 that the boundaries there are village areas, the  16 contiguous village areas, that are not individual  17 house territories as you see on this large map.  So  18 they are the areas of particular house groups.  The  19 point that we are making on this map, and what  20 specifically is, is it was a trade, active trade.  And  21 what I would say is that we will speak to this in  22 terms of our territorial argument when we deal with  23 the findings on the territories, which I will come  24 back to you on.  25 TAGGART, J.A.:  It's 20 past 11, Mr. Grant, would it it be  26 appropriate to take the break at this time?  27 MR. GRANT:  My lord, basically I have concluded tab 5 and will  2 8 move into the next section when we come back from the  29 break.  30  31 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING RECESS)  32  33 MR. MACAULAY:  My lords, before the appellants continue I want  34 to come back again to that map from the historical  35 atlas of Canada, Exhibit 893, plate 13 of the  36 historical atlas.  37 I have been provided with transcript of further  38 portions of the evidence of the witness Ray, which I  39 submit shows that he would -- he didn't, and indeed he  40 wasn't in a position to, adopt the text in the  41 contents of the map.  But it was used by him for a  42 limited purpose.  I am referring now to volume 203 of  43 the transcript, page 13484 and 5.  44 MR. GRANT:  My lords, that is in the reference.  In fact, we  45 cite that specific page.  I was going to refer you  46 directly to that as tab 613, it's the first reference,  47 there are those pages. 714  1 MR. MACAULAY:  And then they came back to it again in volume  2 205, this is in re-examination by Mr. Adams.  3 WALLACE, J.A.:  205?  4 MR. MACAULAY:  Volume 205, pages 13720 and 13721.  And from a  5 reading of those pages, it's my submission that it's  6 clear that this was not -- the map itself and all its  7 contents were not adopted as the witness and the  8 witness wasn't in a position to do that.  9 MACFARLANE, J.A.:  Do I understand correctly, I am reading from  10 the factum, 613, and your reference to Prof. Ray's  11 evidence, and do I understand correctly that his  12 evidence is that the map shows trade routes, and that  13 that was the limited purpose to which he referred to  14 the map and adopted the map, is that your submission?  15 MR. MACAULAY:  That's my submission.  16 MACFARLANE, J.A.: Do you agree with that?  17 MR. GRANT: As I say, we have put in those two pages that my  18 friend referred to in the reference.  19 MACFARLANE, J.A.:  But that's the purpose, it's a limited  20 purpose, it's not that he accepted the internal  21 boundaries as shown on that map?  22 MR. GRANT:  The internal boundaries is not the purpose for which  23 that map went in.  But the point I wanted to direct  24 your lordships before my colleague commences, there  25 were two points I wanted to complete the answer on  26 this, and that is that the references that George  27 McDonald uses in the historical atlas, and this  28 legend, and these references are at the end which were  29 put in later on, are to Barbeau-Beynon field notes,  30 the very material I was discussing with you, which  31 were all exhibited at trial, are to Allaire, from the  32 Skeena River Pre-History, which is an exhibit at  33 trial, Exhibit 1190; Coupland, Prehistoric Cultural  34 Change at Kitsalas Canyon, which is an exhibit at  35 trial; and Englis and McDonald, Skeena River  36 Prehistory, which is an exhibit at trial.  All of the  37 material upon which he relies in support of the trade  38 and trail networks, and in support of the drafting of  39 the map with respect to the Gitksan, is in evidence.  40 And I think I would leave it to your lordships --  41 there was certainly no suggestion to try to add  42 something more.  The references Mr. Macaulay referred  43 you to are at tab 613, and they are there for you to  44 look at.  45 The only other point I want to be clear of Mr.  46 Justice Lambert, you raised, and this will be dealt  47 with in more detail in the territories, but I do 715  1 believe you might have misread what the trial judge's  2 finding was.  At page 115, regarding the boundaries,  3 in his outline at paragraph 42, this is the  4 introduction, and he said --  and he is talking about  5 subsistence rights.  Remember he narrowed down what  6 the rights were.  7 MACFARLANE, J.A.:   115.  8 MR. GRANT: Page 115 and 116 of the reasons.  9  10 "These aboriginal rights, if any, would attach  11 not to the whole territory but only to the  12 parts that were used by the plaintiffs'  13 ancestors at the time of sovereignty.  The  14 parts so used by each of the plaintiff people  15 are defined in part 16 and they are shown on  16 map 5."  17  18 It is map 5 I showed you where he says these  19 aboriginal sustenance rights would apply to the right  20 of occupancy and residence he found was in villages,  21 the right of aboriginal sustenance activities was in  22 map 5.  I thought I ought to bring that to your  23 attention right away as you may have overlooked it.  24 LAMBERT, J.A.:  Yes.  25 MR. GRANT:  And that's subject, of course, to the issue of the  26 extinguishment of those rights which my colleague, Ms.  27 Mandell, is going to be addressing you.  28 MR. MACAULAY:  I have one more submission to make about the  29 maps.  I made objection to map 20, that's the fishing,  30 one of the fishing maps.  And it appears, my objection  31 and Mr. Goldie's comments, appear in volume 207, pages  32 13905 and 6.  33 WALLACE, J.A.:  Would you give me that reference again?  34 MR. MACAULAY:  207, at pages 13905 and 13906.  The Chief Justice  35 appears to have, from my reading of the transcript,  36 struck some portions out in the original exhibit.  At  37 least his copy of the exhibit.  And there may be more  38 of that kind of thing.  We will collect the relevant  39 passages about these maps and hand them up in due  40 course.  But it wasn't -- they weren't all marked as  41 exhibits, including what's sometimes called the  42 editorial comment.  An example of so-called editorial  43 comment, of course, is what was just read by my  44 friend, Mr. Grant, from the McDonald map, the map from  45 the historical atlas of Canada.  So we will be back to  46 that a little later as we can get the material  47 together. 716  1 TAGGART, J.A.:  All right.  Mr. Grant, you have now completed  2 section five of the factum in volume one?  3 MR. GRANT: Because of time I am not reviewing the conclusion  4 with you, but it's there.  5 TAGGART, J.A.:  All right.  And, Ms. Mandell, you are about to  6 begin and where?  7  8 SUBMISSIONS BY MS. MANDELL:  9  10 MS. MANDELL:  My lords I was going to ask you to find volume  11 three, which is appendix K.  12 My lords, the only two volumes you are going to  13 need before you, I have handed up to you a reference  14 book, R-40, which will be the reference series for  15 this volume.  And you will also be referred to  16 appendix K, which is in volume three.  Those are the  17 only two volumes which your lordships are going to be  18 needing.  19 HUTCHEON, J.A.:  We don't need the factum volume?  2 0 MS. MANDELL:  You don't.  And I have handed up speaking notes to  21 your lordships, which I would recommend you insert at  22 the beginning of appendix K.  And largely I will be  23 making my oral submissions through the guide of the  24 speaking notes, and I will only take you into the  25 paragraphs of appendix K occasionally.  So I would ask  26 you to turn to the speaking notes, and to have  27 available the volume R-40, and I think between those  28 two sets of documents we will be able to proceed.  29 My lords, while you're getting organized, I have  30 been sitting here this morning, knowing now what the  31 fishermen at Lillooet feel like with all their fish  32 are the last in line to take.  And I am going to have  33 to abbreviate somewhat the submissions which I was  34 intending to make to you.  35 I am going to address you for the next day and a  36 half on Royal Proclamation, and also on the colonial  37 instruments and the issue of blanket extinguishment.  38 And this morning, for what remains of it, I am going  39 to begin the Royal Proclamation and hopefully finish  4 0 it today.  There may be some carry-over.  And tomorrow  41 I will proceed into the colonial period.  I wanted to  42 advise you --  43 LAMBERT, J.A.:  May I stop you for a moment?  Madam Registrar?  44 MS. MANDELL:  My lords, I have broken the pattern somewhat in  45 terms of the manner in which I have organized your  46 materials in volume R-40.  I have -- I haven't  47 indicated that they are going to follow a particular 717  1 paragraph.  I have organized them in chronological  2 order as to how I intend to refer to them.  But you  3 will see in your speaking notes what I have done is I  4 have indicated for every of the propositions that I am  5 going to address to you, that I tell you where in the  6 tab, that is in your volume R-40, which tab it is that  7 we are going to be dealing with.  And also in appendix  8 K I have indicated the paragraph number.  But I am  9 not, as I mentioned to you, I don't intend to take you  10 into appendix K.  I have consolidated the submission  11 in the speaking notes to the references, which I have  12 set out for you.  13 I would like to begin now by asking your lordships  14 to turn to the speaking notes, and I want to begin by  15 saying that this is a case on the Royal Proclamation  16 not concerning what was known in 1763.  We say that  17 there was evidence before the trial judge, and  18 extensive argument, good legal reason we say to find  19 that the entirety of modern Canada was authoritatively  20 ceded to Britain by France in 1763.  But for the  21 purposes of this appeal, we leave aside the question  22 of what lands were known to the drafters in 1763, and  23 precisely the geographic reach of the land ceded by  24 France and received by Britain by the Treaty of Paris.  25 We say assuming, without arguing the point that  26 British Columbia was not brought under the Crown's  27 dominions and territories until some time after 1763,  28 it's our submission, and one which we will be  29 advancing, that the Royal Proclamation applied  30 prospectively and the trial judge erred in finding to  31 the contrary.  32 If I could ask your lordships to turn to tab 1 of  33 your materials, I would like to take you to the  34 findings of the trial judge on this point.  In tab 1,  35 at page 211, I set out what is Mr. -- the Chief  36 Justice's beginning on the Royal Proclamation.  He  37 says:  38  39 "It is therefore with much hesitation and with  40 the greatest possible respect to the witnesses  41 and to counsel, who expended so much skill and  42 energy on this question, that I find myself  43 able to dispose of it quite summarily.  For  44 reasons which I shall endeavour to state, I do  45 not find it necessary to do more than outline  46 the principal facts and to state my conclusions  47 which result mainly... 71?  1  2 And this is his language and his analysis,  3  4 "...mainly from the language of the Proclamation  5 construed in its historical setting."  6  7 So if I could ask your lordships to turn to page  8 228, which is your next page in tab 1, he begins at  9 the top of the page by stating what he believes the  10 purpose of the Proclamation is:  11  12 "I have no doubt that apart from setting up  13 governments for the new colonies, the  14 underlying purpose of the Proclamation was  15 firstly to pacify the frontier for defensive or  16 military purposes, and secondly to secure the  17 markets of the North American colonies for the  18 manufactured products of the mother country."  19  20 And I can just pause here to remind your lordships  21 that my colleague, Mr. Jackson, addressed you as to  22 another purpose, which we say also was part of the  23 Proclamation, and that is the consolidation of English  24 Crown relations in respect of the Indian people.  25 And if I could go drop down to the second to the  26 last paragraph on the page, he says:  27  28 "I do not propose minutely to consider every  29 word of the Proclamation because I am satisfied  30 that its language demonstrates beyond any  31 question that it applied only to the benefit of  32 certain lands and specified Indians.  33 As to the lands, I have no doubt that the  34 lands of North America, north and west of the  35 headwaters of the Mississippi were not lands  36 over which the British Crown had any authority  37 in 1763, except for Rupert's Land, which was  38 not within the reach of the  Proclamation."  39  40 Then if you will turn the page, my lords, this is  41 now in respect to Indians, he says:  42  43 "The first mention of Indians in the  44 Proclamation is in the preamble, Pt. IV, which  45 describes 'the several Nations or Tribes of  4 6 Indians, with whom We are connected and who  47 live under Our Protection.'  Every reference to 719  1 Indians in the balance of the Proclamation  2 refers to 'the said Indians', indicating that  3 the only Indians embraced by the Proclamation  4 are those with whom the Crown was connected and  5 who lived under the protection of the Crown."  6  7 Then if you will turn to the next page, 230, the  8 next page in the judgment, he says, at the second  9 paragraph:  10  11 "I have given this question much careful  12 thought, particularly the plaintiffs' argument  13 that the Royal Proclamation should be given a  14 prospective construction so as to include  15 tribes of Indians with whom the Crown later  16 became connected and who later found themselves  17 under its protection.  18 I am unable to accept this submission.  The  19 tenor of the Proclamation in its historical  20 setting clearly relates to the practical  21 problems facing the Crown in its then American  22 colonies.  Two of the Indian clauses of the  23 Proclamation actually state they are prescribed  24 for 'the present' and a fair reading of the  25 document makes it clear that it relates to and  26 applies for the use of the said Indians, who  27 are those with whom the Crown was connected,  28 etc., and over whom the Crown then exercised  29 sovereignty.  It must be remembered that  30 Britain had just obtained sovereignty of all of  31 North America east of the Mississippi, but its  32 new and old colonial governments had  33 jurisdiction over peoples and territories which  34 were much more limited."  35  36 Then he says:  37  38 "It is the Indians in these extra lands which  39 were included within the reach of the  40 Proclamation."  41  42 That is, the Indians not within the old colonies,  43 which were in lands east of the Mississippi.  44  45 "The Crown had no connection with the Indian  46 people west of the Rockies who owed the Crown  47 no actual or even notional allegiance and were 720  1 in no way under its protection."  2  3 Dropping down to the final paragraph of the same  4 page:  5  6 "In a proper case I think it is appropriate to  7 apply a purposive approach to the language of  8 the instrument Royal Proclamation which is much  9 closer to a statute than to a treaty.  As I  10 have said, its principal purposes were to  11 establish new governments, to settle present  12 and anticipated difficulties on the frontier  13 and to encourage British mercantilism by  14 limiting the spread of settlement too distant  15 from coastal trade.  The extension or  16 application of the Proclamation to unknown  17 Indians in unknown lands beyond or northwest of  18 the Mississippi, particularly with the terra  19 incognita of the 'Canadian west', in no way  20 served those purposes."  21  22 Now, if I could return your lordships to the  23 speaking notes, the principal arguments which we will  24 address in respect to the trial judge's errors are set  25 out at the bottom of page one.  We say that the Royal  26 Proclamation calls for a prospective application, and  27 these are the three principal reasons, and we will be  28 addressing them each in turn.  We say that the land  29 provisions have been judicially considered to have the  30 force of statute analogous to the status of the Magna  31 Carta which has always been considered to be the law  32 throughout the empire.  It was the law which followed  33 the flag as England assumed jurisdiction over  34 newly-acquired territories.  35 We say, secondly, that the words of the land  36 provisions taken together both with authorities which  37 have considered the prospective application, and also  38 with evidence of the Jurisdiction Acts, compel a  39 prospective application.  40 And we say, thirdly, that to the extent that  41 intrinsic evidence is relevant, such evidence supports  42 the view that the drafters intended to leave the  43 western boundary open-ended and to extend commerce to  44 all the Indians of the continent known and to be  45 discovered by the Crown.  The trial judge improperly  46 used documents to add a western boundary to language  47 of the Proclamation where no such term appears on the 721  1 face of the instrument.  2 Finally, we say if ambiguity can be found on the  3 face of the instrument or having regard to relevant  4 extrinsic evidence, that ambiguity ought to have been  5 resolved in the appellants' favour and it was not.  6 And I will take you to the trial judge's, in our  7 submission, misconstruing of the Mitchell and the  8 Nowegijick principles.  9 My lords, I would like to ask you to turn to tab  10 two.  I have set out here the Proclamation, and I am  11 going to   this is taken from the back of the  12 judgment but I do that so it will be somewhat easier  13 for us to see the wording.  I would like to take you  14 through the language of if.  First, though, for your  15 lordships review, a Proclamation is an official public  16 announcement of an Act of the Crown.  It's effected by  17 order-in-council and to be valid it has to pass  18 through the Great Seal.  And this Proclamation was.  19 Royal Proclamations as public acts of the Great Seal  20 are considered to be prerogative instruments of a high  21 order, and like commissions and charters, they are  22 susceptible of operating as colonial constitutions.  23 In fact, this Royal Proclamation performed this  24 function for Quebec, and the basic constitution of  25 Trinidad for many years was a Royal Proclamation.  So  26 that's the legal force of the document.  27 I would like to take your lordships through the  28 terms of it.  Your lordships will be aware that there  29 are four parts to the Proclamation, each with its own  30 preamble.  And the parts vary in subject matter and  31 scope, and they range in coverage from a single colony  32 to the entirety of the British territories in North  33 America.  34 And I am going to begin with Part I.  There is  35 numbers, B, C, D 1) and 2) beside them, and for the  36 purposes of the first three parts, I will be referring  37 to the letters, when I speak of the paragraphs.  The  38 preamble of Part I announces measures for exposing of  39 the former French and Spanish territories which were  40 acquired in the Treaty of Paris.  And I will just read  41 to your lordships:  42  43 "Whereas We have taken into Our Royal  44 Consideration the extensive and valuable  45 acquisitions in America, secured to Our Crown  46 by the late definitive Treaty of Paris...and  47 being desirous that all Our loving subjects as 722  1 well as Our Kingdoms as Our colonies in  2 America, may avail themselves, with all  3 convenient speed of the great benefits and  4 advantages which must accrue therefrom to their  5 commerce, manufactures and navigation."  6  7 So they are announcing now "We have thought fit  8 to", and what they do then is they create four new  9 colonies.  And that's described just before the big  10 letter D, Quebec, East Florida, West Florida and  11 Grenada.  So this section of the Proclamation brings  12 four new colonies, organizes them inside the ambit of  13 the Proclamation.  14 Now, paragraphs D, E, F and G will all describe  15 the boundaries, precise boundaries of each of those  16 four new colonies, and your lordships when you read it  17 will be aware that paragraphs H, I and J cover the old  18 colonies, but they annex some territories unto them.  19 So that's what is taking place within the first part  20 of the Proclamation.  We have got the creation of four  21 new colonies with boundaries and annexation of lands  22 to some of the old ones.  23 Now, Part II is devoted to the constitution of  24 these new governments in their four colonies, and it  25 begins:  26  27 "Whereas it will greatly contribute to the  28 speedy settling of Our said new governments,  29 that Our loving Subjects should be informed of  30 Our Paternal Care for the security of the  31 liberties and properties of those who are and  32 shall become inhabitants ..."  33  34 You can see a forward-reaching language here.  And  35 what the next section does is in terms of the  36 constitution of the new governments, I will summarize  37 that paragraph beside paragraph M, the governors are  38 empowered to summon assemblies under -- between the  39 pargraphs between M and N, the governors are empowered  40 to make laws as near as agreeable to the laws of  41 England, and meanwhile the inhabitants will enjoy  42 English law.  43 Between the paragraphs N and 0, the governors are  44 empowered to create courts, again the law as near as  45 agreeable to the laws of England.  46 Between 0 and P, the power to appeal to the Privy  47 Council is maintained.  And I want to note and read to 723  1 you paragraph P, it's a function which is being left  2 now to the governors of the new colonies:  3  4 "We also thought fit with the advice of Our  5 Privy Council as aforesaid, to give unto the  6 governors and councils of Our three new  7 colonies upon the continent, full power and  8 authority to settle and agree with the  9 inhabitants of Our said new colonies, or with  10 any other persons who shall resort thereto, for  11 such lands, tenements and hereditaments..."  12  13 And again this forward-reaching language,  14  15 " are now or hereafter shall be in Our  16 power to dispose of."  17  18 So the colony governors are given power to settle  19 land matters with the Indians and the phrase which is  20 forward-reaching " are now or hereafter shall be  21 in Our power to dispose of."  22 Now, Part III of the Proclamation is the free land  23 to the military, and these provisions are directed  24 both to the governors of the new colonies and also,  25 and I am going to read the language:  26  27 "We do hereby command and empower the governors  28 of the said three new colonies, and all other  29 Our governors of Our several provinces on the  30 continent of North America..."  31  32 This is in order to give free land to the  33 military.  It extends beyond the colonies and to all  34 the other governors within the North American British  35 Empire.  36 Now if I could ask your lordships to drop down to  37 Part IV, this is the provision dealing with a variety  38 of matters relating to Indians.  It's longer and it's  39 more complex than the other sections.  And it begins  40 with the preamble:  41  42 "And whereas it is just and reasonable and  43 essential to Our interest in the security of  44 Our colonies, that the several Nations or  45 Tribes of Indians with whom We are connected  46 and who live under Our protection, should not  47 be molested or disturbed in the possession of 724  1 such parts of Our Dominions and territories as  2 not having been ceded to or purchased by Us are  3 reserved to them."  4  5 I just want to pause, my lords, and go through  6 that language carefully.  The Indians are the several  7 Indians, "...the several Nations or Tribes of Indians  8 with whom We are connected and a who live under Our  9 protection."  The protection is that they shall not be  10 molested or disturbed and the territory which is  11 contemplated by the preamble, " the possession of  12 such parts of Our Dominions and territories as not  13 having been ceded to or purchased by Us are reserved  14 to them."  And your lordships will note that the --  15 they are not speaking of reserving land to the  16 Indians, but to the justice of protecting Indians from  17 being disturbed in the possession of their pre-  18 existing land rights.  So which lands are reserved,  19 the language is, "...lands not ceded to or purchased  20 by Us."  21 And if your lordships will turn past the  22 Proclamation in your materials to the first, past the  23 first pink divider, I have introduced in this, this is  24 still in tab 2, my lords, just go past the  25 Proclamation for a minute, and I have included a  26 paragraph from tab 7, which Mr. Jackson didn't stress  27 but which I wanted to in this context.  And it is  28 this, that the recital in Part IV, which describes the  29 lands, "...such parts of Our Dominions and Territories  30 as not having been ceded to or purchased by Us or in  31 Indian possession...".  These words are not chosen  32 without care, as a perusal of the final working draft  33 of the Proclamation shows.  In each case they owe  34 their presence in the text to amendments of the draft  35 Proclamation, most likely made by John Pownall, who  36 was the secretary to the Board of Trade.  The preamble  37 to Part IV as originally phrased refers to:  38  39 "Indians in possession of such parts of our  40 Dominions and Territories as are occupied by or  41 reserved to them as their hunting grounds."  42  43 And it was very late in the day that those words  44 were changed to the wording that you see in the  45 Proclamation.  This was altered to read:  46  47 "...such parts of our Dominions and Territories 725  1 as not having been ceded to our purchased by Us  2 are reserved to them."  3  4 And then we will see as we go along that in  5 various other paragraphs of the Proclamation, the  6 language was changed accordingly.  7 Now, my lords, I say that the preamble recognizes  8 Indians, "...for the several Nations and Tribes of  9 Indians..."  who the Proclamation refers to, the land  10 which is being referred to in the preamble recognizes  11 Indians holding rights to un-ceded land in their  12 possession in North America.  13 Now paragraph one, and I am going to now speak of  14 this in terms of paragraphs one, two, three and four  15 and not the letters, because it's more -- I am more  16 used to doing that.  Paragraph one, the first  17 paragraph:  18  19 "We do therefore, with the advice of Our Privy  20 Council, declare it to be Our Royal will and  21 pleasure that no governor or Commander in Chief  22 in any of Our colonies of Quebec, East Florida  23 or West Florida, do presume upon any pretense  24 whatever, to grant Warrants of Survey or pass  25 any Patents for lands beyond the bounds of  26 their respective governments as described in  27 their commissions; as also that no governor or  28 Commander in Chief in any of Our other colonies  29 or plantations in America do presume for the  30 present and until our further pleasure be known  31 to grant warrants of survey or pass Patents for  32 any lands beyond the heads or sources of rivers  33 which fall into the Atlantick Ocean from the  34 West and North-west, or upon any Lands  35 whatever, which, not having been ceded to, or  36 purchased by Us as aforesaid, are reserved to  37 the said Indians, or any of them."  38  39 So what you have operating in paragraph one is  40 that is the King is prohibiting the governors of these  41 new colonies from granting land beyond their  42 boundaries, and no governor "in any of the colonies  43 and plantations in the Americas..."  so now they are  44 going beyond the three new colonies, "...shall grant  45 Patents upon which land any land which is not ceded to  46 or purchased by Us."  47 So you have the same territorial reach for the 726  1 lands in paragraph one and you do in the preamble,  2 which we say is to do with unceded lands in the  3 possession of the Indians in North America.  4 And I just refer your lordships to the word "as  5 aforesaid", at the bottom of paragraph one, which can  6 refer to no other but the lands which have already  7 been described in the preamble.  8 Now, my lords, you will see that there is a barrier  9 then which has been put on settlement, but the barrier  10 is not permanent, because as the paragraph said, it's  11 "until Our further pleasure be known."  So what --  12 this is referring to the barrier that Mr. Jackson  13 referred to in his material, where the Appalachian  14 line is now going to be for the present, not a  15 permanent one, but for the present, will become a  16 barrier to settlement.  17 Now, paragraph 2:  18  19 "And We do further declare it to be Our Royal  20 will and pleasure for the present as aforesaid,  21 to reserve unto Our sovereignty, protection and  22 Dominion for the use of the said Indians, all  23 the lands and territories not included within  24 the limits of Our said three new governments or  25 within the limits of the territory granted to  26 the Hudson's Bay Company as also all the lands  27 and territories lying to the westward of the  28 sources of the river which fall into the sea  29 from the west and northwest as aforesaid; and  30 We do strictly forbid, on pain of Our  31 displeasure, all Our loving subjects from  32 making any purchases or settlements whatever,  33 or taking possession of any of the lands above  34 reserved, without Our especial leave and  35 licence for the purpose first obtained."  36  37 So what paragraph 2 is describing, my lords, is an  38 exclusive Indian territory which has been reserved for  39 the Indians.  It's held "under Our sovereignty,  40 protection and Dominion..."  and it's comprising all  41 the lands and territories not included within the new  42 governments or the Hudson's Bay Company, and all the  43 lands west of the Appalachian divide, as aforesaid,  44 which refers back, in our submission, to the preamble.  45 And it's creating an Indian territory where British  46 subjects cannot make purchases or settlements without  47 British licence. 727  1 We note, my lords, that there is no western  2 boundary which is put to this Indian reserve, and in  3 fact the boundary is defined negatively, that is, it's  4 not the boundaries of the existing colonies.  It's  5 defined negatively.  It's all the other land which  6 falls outside of the boundaries and, in our  7 submission, that's logical, because the pressure to  8 colonize will be coming from the east.  So this is  9 actually a fence to the settlers, that this is a line  10 beyond which, for the present, it's temporary, as was  11 the paragraph above it, a temporary halt is being  12 placed on the movement into the American hinterland,  13 and it's reinforced by paragraph one, where the  14 governors can't grant grants in that area.  Well, for  15 the same area neither can settlers make -- place  16 themselves.  17 Now, paragraph 3 is --  18 TAGGART, J.A.:  On that question of scope and the lack of a  19 western boundary, how do you construe the opening  20 words of the Proclamation "...secured to Our Crown by  21 the late definitive Treaty of Peace concluded at Paris  22 the 10th day of February last"?  23 MS. MANDELL:  My lord I will be addressing —  24 TAGGART, J.A.:  What did the Treaty of Paris do?  25 MS. MANDELL:  What did it do?  My lord, I will be addressing  26 that in detail.  I will be taking you to the Treaty of  27 Paris, but what it did, in general, was that France  28 ceded, in the most general language, talk about  29 quitclaim language, in the broadest term, France ceded  30 to Britain all our her dependencies and claims and  31 interests to the territory, which is the territory  32 which France had claimed in North America, reserving  33 only to herself what has been referred to as her  34 colony in Louisiana, which is a specific territory  35 west of the Mississippi, but not the northwest of the  36 American continent.  So, this -- I will take you to  37 the language.  But it's a very encompassing quitclaim  38 of all her claims, all of her lands in North America.  39 And I will show you the reach of that when I get to  40 that portion of the argument.  Britain got what France  41 had and also what France claimed.  That's what the  42 Treaty of Paris did.  43 My lords, under paragraph 3:  44  45 "And We do further strictly enjoin and require  46 all persons whatever who have either wilfully  47 or inadvertently seated themselves upon any 72?  1 lands within the countries above described, or  2 upon any other lands, which, not having been  3 ceded to, or purchased by Us, are still  4 reserved to the said Indians as aforesaid,  5 forthwith to remove themselves from such  6 settlements."  7  8 So paragraph 3 is really the teeth to paragraph 2,  9 it orders the removal of anyone who has settled into  10 Indian country, or "...upon any lands not ceded, which  11 are reserved as aforesaid."  So that, in our  12 submission, comes back to the general language of the  13 preamble.  14 And, again we note that there is no western  15 boundary placed to paragraph 3.  16 Now paragraph 4) a) :  17  18 "And whereas great frauds and abuses have been  19 committed in the purchasing lands of the  20 Indians, to the great prejudice of Our  21 interest, and to the great dissatisfaction of  22 the said Indians; in order therefore to prevent  23 such irregularities in the future, and to the  24 end that the Indians may be convinced of Our  25 justice, and determined resolution to remove  26 all reasonable cause of discontent, We do with  27 the advice of our Privy Council strictly enjoin  28 and require that no private person do presume  29 to make any purchase from the said Indians of  30 any lands reserved to the said Indians within  31 those parts of the Our colonies where We have  32 thought proper to allow settlement; but that if  33 at any time any of the said Indians should be  34 inclined to dispose of the said land, the same  35 shall be purchased only for Us, in our name, at  36 some public meeting or assembly of the said  37 Indians, to be held for that purpose by the  38 Governor or Commander in Chief of Our colonies  39 respectively, within which they shall lie; and  40 in case they shall lie within the limits of any  41 proprietary government..."  42  43 That would be for the Hudson's Bay Company,  44  45 "...they shall be purchased only for the use and  46 in the name of such proprietaries, conformable  47 to such directions and instructions as We or 729  1 they shall think proper for that purpose."  2 So what 4)a) is dealing with in more detail is the  3 purchase of Indian lands which are mentioned in  4 paragraph one.  What the paragraph is referring to is  5 the frauds and abuses, and the King is forbidding  6 persons of making,  7  8 "...purchases of any land reserved to the said  9 Indians within thoughts parts of our colony  10 where We have thought fit to allow settlement."  11  12 Again, it's applying both to the proprietary and  13 non-proprietary colonies.  Such lands are to be  14 purchased with the consent and in an open meeting, and  15 again we say that the lands is the lands reserved, and  16 the language is the same language as paragraph one in  17 the preamble, and paragraph 3, that is "...lands which  18 have not been ceded or purchased by Us."  19 My lord, I think that the relationship between  20 paragraphs two, three and four might be described this  21 way, that the preamble acknowledges Indian rights to  22 unceded land in their possession in North America.  23 And what paragraph 2 does, this is the Indian reserve,  24 in regions closed to settlement, the Imperial Crown is  25 the one who will permit settlement through the leave  26 and licence.  But where the King opens up the interior  27 to settlement, and creates a colony there, then the  28 purchase provisions relating to areas "...where We  29 have thought proper to allow settlement..." would  30 become applicable, and special leave and licence will  31 be replaced by the colonial officials' freedom to  32 negotiate land treaties, and that the difference is  33 really the degree of control which the Crown will  34 exert within the Indian country on one hand, where  35 they exert great control through the leaves of  36 licence, and in the colonies where the King will  37 directly have littler control left, where the colonies  38 and the governors themselves, through the section 4)a)  39 provisions, will be able to take land surrenders.  40 4)b):  41  42 "We do, by the advice of Our Privy Council  43 declare and enjoin that the trade with the said  44 Indians shall be free and open to all Our  45 subjects whatever, provided that every person  46 who may incline to trade with the said Indians  47 take out a licence for carrying on such trade 730  1 from the Governor or Commander in Chief of Our  2 colonies respectively and where such person  3 shall reside and also give security to observe  4 such regulations and We shall at any time think  5 fit by Ourselves or our commissioners to be  6 appointed for this purpose, to direct and  7 appoint for the benefit of the said trade."  8  9 So, what's happening here is that Indian trade is  10 being opened up to all British subjects with a  11 licence, and 4)b) is authorizing the governors of the  12 colonies to grant licences, and the provision appears  13 to apply to all British colonies in North America.  14 And finally the last provision:  15  16  17 "And We do hereby authorize, enjoin and require  18 the Governors and Commanders in Chief of all of  19 Our colonies respectively as well as those  20 under Our immediate government, as those under  21 the government and direction of proprietaries,  22 to grant such licences without fee or reward,  23 taking special care to insert therein a  24 condition that such licences shall be void, and  25 the security forfeited, in case the person to  2 6 whom..."  27  28 I am sorry,  29  30 "...the same is granted."  31  32 This is still part of the pay provision. I meant  33 to take you to paragraph 5 at the top of the page.  34  35 "And We do further expressly enjoin and require  36 all officers whatever, as well military as  37 those employed in the management and direction  38 of Indian affairs within the territories  39 reserved as aforesaid for the use of the said  40 Indians, to seize and apprehend all persons  41 whatever, who, standing charged with treasons,  42 misprisions of Treason, murders or other  43 felonies or misdemeanors, shall fly from  44 justice, and take refuge in the said territory,  45 and to send them under the proper guard to the  4 6 Colony where the crime was committed of which  47 they stand accused, in order to take their 731  1 trial for the same."  2  3 So what the text does is make provisions for the  4 apprehension of persons who have charge -- they are  5 charged and they take refuge in the territory as  6 aforesaid, and these people can be returned to the  7 colony.  8 Now, it's also to be noted that paragraph 5 is the  9 same open-ended provision as paragraph 2.  There is no  10 boundaries put to this.  It's simply if the fugitive  11 moves into Indian territory then they can be brought  12 back.  13 My lords, in summary on this point, we say that the  14 Part IV of the Royal Proclamation recognizes that  15 lands possessed by Indians anywhere in North America  16 are reserved to them, unless those lands are ceded and  17 purchased by the Crown.  The provisions protect land  18 from grants, settlements and purchase, it temporarily  19 closes the American frontier, and your lordships will  20 notice that for the present the temporary words are  21 only used in the two paragraphs respecting the  22 boundary line which will govern the temporary  23 settlement, it temporarily closes the American  24 frontier and if reserves it for Indian use and for the  25 skin trade, because there is going to be licences  26 which will be given by the colonies for the fur  27 traders to move into this area in order to do their  28 fur trade.  It temporarily restricts settlement to the  29 new colonies, Rupert's Land and the area east of the  30 Appalachian Mountains.  31 My lords, just before completing an introduction to  32 the Proclamation, I want you to be aware of two  33 things:  One is that at the very back of the tab where  34 I have put the Proclamation, I have also enclosed a  35 letter from Halifax, who was then the Secretary of --  36 the Colonial Secretary to the Lords of Trade.  It's  37 the September 19th letter.  And I do this just to  38 illustrate to your lordships that -- and I will be  39 referring to this history in more detail -- that the  40 discussion as to what to do with this land which was  41 claimed from the Treaty of Paris, in terms of the  42 Lords of Trade, was ongoing from at least January of  43 1763.  And the focus between January and September,  44 was how do we organize our relationships with the  45 Indians. And that was primarily the focus.  And very  46 late in the day, this is September, the Proclamation  47 was pronounced in October, the Lords of Trade, Halifax 732  1 is writing to the Lords of Trade, and I am not going  2 to take you through the letter, but to make your  3 lordships aware that it was only at this very late day  4 that the Lords of Trade decided to expand the purpose  5 of the Proclamation beyond merely the Indian  6 provisions and to include, and your lordships will see  7 in you will turn over the first page of the letter, at  8 the bottom of the first column, they were directed to  9 expand the Proclamation's purpose to make known the  10 establishment and limits of the four new colonies, to  11 declare the constitutions of the new colonies, to  12 prohibit private purchases of lands from Indians, to  13 declare free trade, to empower all military officers  14 to take Indian -- to take people, fugitives, back into  15 Indian territory.  So the actual purposes for which  16 the Proclamation was intended to be drafted expanded  17 at a fairly late stage to include a number of other  18 provisions which formerly the King had not been --  19 believing that he will be addressing through the  20 Proclamation.  21 And finally, before I leave, your lordships, I  22 wanted to ask you to turn to tab 3.  And there are a  23 number of cases where the lands reserved for the  24 Indians clause has been interpreted judicially, and I  25 wanted to draw your lordships to the decisions which  26 support the interpretation which I have submitted to  27 your lordships, and that is that the lands are lands  28 which have not been -- reserved lands are lands which  29 have not being ceded or purchased.  That broad  30 category of lands.  31 The first decision is Mr. Justice Strong in St.  32 Catherines Milling, and I if I could take you to the  33 middle the last paragraph, he says:  34  35 "Thus using the text of the Proclamation as a  36 glossary, we find that in 1763 lands reserved  37 for the Indians meant lands not ceded or  38 surrendered by them to the Crown."  39  40 And, my lords, if you will turn to the next case  41 after the pink divider, the Privy Council accepts  42 this, and I will refer you to the middle of the full  43 paragraph beginning "whilst there have been  44 changes..." it's right after the pink slip:  45  46 "Whilst there have been changes in the  47 administrative authority, there has been no 733  1 change since the year 1763 in the character of  2 the interest which its Indian inhabitants had  3 in the lands surrendered by the treaty.  Their  4 possession, such as it was, can only be  5 ascribed to the general provisions made by the  6 Royal Proclamation in favour of all Indian  7 tribes then living under the sovereignty and  8 protection of the British Crown."  9  10 Then at the next page, if your lordships will turn  11 to it, the Indian interest was described as a general  12 burden.  13  14 "It appears to them to be sufficient for the  15 purposes of this case that there has been all  16 along vested in the Crown a substantial and  17 paramount estate underlying the Indian title  18 which became a plenum dominium whenever that  19 title was surrendered or otherwise  20 extinguished."  21  22 If your lordships can turn to the next case, just  23 after the pink divider, this is a decision of our  24 Supreme Court of Canada involving lands which the St.  25 Regis band had alienated, contrary to the terms of the  26 Proclamation, and the grant was struck down.  And in  27 the course of the judgment, the court said:  28  29 "There is no evidence whatsoever as to what were  30 the powers or authority of the British Indian  31 Chiefs of St. Regis, but it is admitted that  32 the premises, being Crown Lands, had not been  33 ceded or surrendered to the Crown by the  34 Indians; and, therefore, as a matter of law,  35 the Chiefs could not dispose of the reserve or  36 any part of it or any state therein."  37  38 And St. Catherines was quoted.  39 And finally, my lords, if I could ask you to turn to  40 the next case under the pink slip, this is Mr. Justice  41 Norris quoting with approval in White and Bob from the  42 Ontario Mining and Seybold case, and if I could just  43 drop down to the last paragraph of the quote:  44  45 "And as to the scope of 'lands reserved for  46 Indians', it is laid down that the phrase is  47 sufficient to include all lands reserved upon 734  1 any terms or conditions for Indian occupation.  2 That is to say, the expression is to be traced  3 back to the Royal Proclamation is not to be  4 limited to reserves set apart under the  5 provisions of a treaty, but is of larger scope  6 covering all wild and waste lands in which the  7 Indians continue to enjoy their primitive right  8 of occupancy even in the most fugitive manner.  9 But no doubt the phrase does include a treaty  10 reserve."  11  12 Now, we disagree with the description of  13 aboriginal title but agree with the fact that it's not  14 a reserve which has been specifically set out.  15 My lord I think that this is as far as I can get.  16 TAGGART, J.A.:  Very well.  2 o'clock.  17  18        LUNCH BREAK  19  20  21  22  23 I hereby certify the foregoing to be  24 a true and accurate transcript of the  25 proceedings herein to the best of my  26 skill and ability.  27  28  29  30  31 Wilf Roy  32 Official Reporter  33 United Reporting Service Ltd.  34  35  36  37  38  39  40  41  42  43  44  45  46  47 735  1 (PROCEEDINGS RESUMED)  2  3 THE REGISTRAR:  Order in court.  4 MR. ARVAY:  My lords, the new person on our side of the counsel  5 table is Miss Jennifer Hocking.  6 TAGGART, J.A.:  You're welcome.  I had been hoping to wish your  7 former student a fond farewell for about 20 minutes to  8 be called tomorrow and then come back and illuminate  9 these proceedings.  10 MR. ARVAY:  Maybe she will do that.  11 TAGGART, J.A.:  We'll have an opportunity to wish her well when  12 she returns.  Yes, Miss Mandell.  13 MS. MANDELL:  Well, my lord, we're trying to get the  14 Proclamation of British Columbia.  I would like to  15 take you to tab 4 of the materials.  Mr. Chief Justice  16 McEachern in the discussion of the Proclamation,  17 between pages 217 and 223, set out what he thought  18 were the important historical moments within which the  19 Proclamation occurred, and I would like to highlight  20 three significant, in our submission, historical  21 events which were all coming together at the time of  22 the enactment of the Proclamation.  23 The first is one which was referred to in detail  24 by Mr. Jackson, and that is that in the period just  25 prior to the Proclamation the French and the English,  26 in their fight for control of the continent, had  27 their -- the British success was very much involved  28 with the fact that the Indian people had become their  29 allies, and Mr. -- and the Chief Justice reflected  30 that fact, and I won't read you the passage, but it's  31 these first -- it's the paragraph on page 217  32 beginning "The ultimate British success", and I will  33 just refer your lordships to the fact that that  34 historical detail of some note was reflected by the  35 Chief Justice.  36 The second historical fact, which in our  37 submission is very important, and while it wasn't  38 highlighted in any detail by the Chief Justice, it  39 certainly was referred to a number of times during  40 these pages, and that is that after the war with  41 France was over the British did not remove themselves  42 from the outposts which they had put in Indian  43 territory in the country of the Indian people during  44 their rivalry with the French, and at the same time  45 westward settlement was occurring, and the Indian  46 people then waged war against the British, and Chief  47 Pontiac, who was a chief and a profit, the son of a 736  1 chief, led the war against the British, which occurred  2 between 1760 and 1763.  And by 1763, just before the  3 Proclamation was enacted, seven of the ten British  4 outposts were taken over -- overtaken by the Indian  5 people.  And this fact is reflected a number of times,  6 and it certainly came to the attention of the Lords of  7 Trade when they were drafting a Proclamation.  And if  8 I could just ask your lordships to turn to page 223 of  9 this account, I'll highlight one important letter  10 which reflects the fact that the Pontiac wars were  11 well understood by the Lords of Trade.  This is a  12 discussion of a letter of July 1763, where Egremont  13 was responding to a report advising that it had been  14 laid before the King in terms of what to do with the  15 territory, and at the top of page 223:  16  17 "The Lords also suggested further information  18 should be obtained, not apparently then knowing  19 that most of the military forts in the  20 interior, except Detroit, had been captured by  21 Indians in Pontiac's rebellion.  The Lords  22 concluded their response:  23 'In the meantime, we humbly propose that a  24 Proclamation be immediately issued by Your  25 Majesty as well on Account of the late  26 complaints of the Indians, and the actual  27 Disturbances in Consequence.'"  28  2 9 And so there was knowledge at that time among the  30 Lords of Trade as to the fact that these rebellions  31 were actually almost at this stage defeating the very  32 British possessions which the British had so long  33 struggled to gain control of against the French.  And  34 it was this point that drove the British to consider  35 what then will be their response to the Indian people  36 in some kind of major way.  And I turn your lordships  37 to page 220, although there are many other examples of  38 it, what the Lords of Trade considered was that rather  39 than to try and, if they could, win the North American  40 continent as against the Indians with warfare, instead  41 what they decided to do was to entrench a mutually  42 agreeable set of principles which would be the  43 foundation upon which they could then colonize.  And  44 that was reflected in Egremont's letter of May 5th to  45 the Lords of Trade.  And I'm reading from the bottom  46 of the page, of page 220:  47 737  1 "On 5th May Egremont wrote to the Lords of Trade  2 requesting a report on the various problems  3 associated with the newly acquired territories  4 in America.  He framed one of his principal  5 questions in the following terms:  6 'The second question, which relates to the  7 security of North America, seems to include two  8 objects to be provided for; the first is, the  9 security of the whole against any European  10 power; the next is the preservation of the  11 internal peace and tranquility of the country  12 against Indian disturbances.  Of these two  13 objects, the latter appears to call more  14 immediately for such regulations and  15 precautions as your lordships shall think  16 proper to suggest."  17  18 And Egremont proposes the following suggestion, which  19 has been historically called "Lights":  20  21 "Tho' in order to succeed effectually in this  22 point, it may become necessary to erect some  23 forts in the Indian country, with their  24 Consent, yet His Majesty's Justice and  25 Moderation inclines him to adopt the more  26 eligible method of conciliating the minds of  27 the Indians by the Mildness of his Government,  28 by protecting their Persons and Property and  29 securing to them all the Possessions, Rights  30 and Privileges they have hitherto enjoyed, and  31 are entitled to, most cautiously guarding  32 against any Invasion or Occupation of their  33 Hunting Lands."  34  35 And I say to your lordships that's exactly the policy  36 which in fact was formalized in the Royal  37 Proclamation.  And, my lords, what I say about this is  38 that the land provisions in Part 4 are actually the  39 very foundation upon which our country has been  40 founded.  It's been the first Constitution between the  41 Crown and the Indians upon which this country was  42 finally able itself to grow to full statehood, and  43 it's because of that that when reports have looked at  44 the Royal Proclamation they have considered it as  45 having the force of statute, and, as the courts have  46 said, analogous to the status of the Magna Carta,  47 which has always been considered to be the law 73?  1 throughout the empire.  It was the law that followed  2 the flag as England asserted jurisdiction over newly  3 discovered or acquired lands or territories.  4 And if I could ask your lordships to go to tab 5,  5 I've assembled the very very many cases which have  6 looked at the Royal Proclamation as being like the  7 Magna Carta.  And I begin in the very first case of  8 Mr. Justice Hall, and I'm going to read from the  9 sentence that is following "Campbell and Hall" from  10 the paragraph beginning "Paralleling", and he begins:  11  12 "Its force as a statute is analogous to the  13 status of Magna Carta which has always been  14 considered to be the law throughout the empire.  15 It was a law which followed the flag as England  16 assumed jurisdiction over newly-discovered or  17 acquired lands or territories."  18  19 And if I can drop down to the next --  20 LAMBERT, J.A.:  Can I just — am I right in saying that  21 parliament could only make laws applicable within the  22 United Kingdom?  23 MS. MANDELL:  The Imperial Parliament?  24 LAMBERT, J.A.:  The Imperial Parliament.  Sometimes that must  25 have changed, because what used to be called the  26 British North America Act of 1867 was an Act of the  27 Imperial Parliament.  2 8 MS. MANDELL:  Yes.  29 LAMBERT, J.A.:  Which had force in Canada.  30 MS. MANDELL:  Yes.  31 LAMBERT, J.A.:  But I would not be surprised to find out that at  32 an earlier stage the whole government of the colonies  33 was done through acts like this Royal Proclamation,  34 rather than through the Parliament of the United  35 Kingdom.  36 MS. MANDELL:  That's right.  My lord, as I best understand it,  37 the King's prerogative, this is without an Act of  38 Parliament, extended to constituting Constitutions and  39 empowering governments and creating the Constitution  40 of colonies.  This is something which could be done  41 without an Act of Parliament.  42 LAMBERT, J.A.:  Not only that, it was the only way to do it.  43 MS. MANDELL:  That's right.  Well, I should say it was the major  44 way to do it, and I will get to that in one minute.  45 However, once the prerogative was passed a  46 prerogative instrument could always be amended or  47 repealed by an Act of Parliament.  The Royal 739  1 Proclamation, for example, is always subject to an  2 Imperial Act of Parliament, which we would say clearly  3 and plainly would have to extinguish or intefere with  4 the rights which were expressed.  The prerogative is  5 the first law which is applicable without an Act of  6 Parliament, but thereafter parliamentary supremacy  7 will take its hold, and I will get into this a bit  8 later, but the Quebec Act, which was enacted  9 immediately after the Royal Proclamation, which was an  10 act of the Imperial Parliament, expressly repealed  11 certain sections of the Royal Proclamation as it  12 related to the boundary of Quebec, and so certainly an  13 Act of the Imperial Parliament could do that.  14 Now, your question about whether or not this is a  15 valid exercise of the prerogative to create an  16 instrument such as this outside of the bounds of the  17 Imperial Parliament; the answer is yes, it could be  18 done.  I can point your lordship to Hogg and some of  19 the other writers that -- Chitty, a number of them  20 speak about the prerogative power, Campbell and Hall  21 speak about it, most directly as to the fact that this  22 is a valid exercise of the prerogative.  The test was  23 whether it came under the great seal.  24 LAMBERT, J.A.:  Why would the Lords of Trade, particularly on  25 the plantations, why would they choose this route  26 rather than introduce the bill in parliament?  27 MS. MANDELL:  Well, in the case of — your lordship was right  28 when you said earlier that this is the normal way they  29 did it, when -- when a colony was being annexed or  30 there was territory being claimed, this is very much a  31 part of the prerogative of the King or the Queen, this  32 is four square in the prerogative jurisdiction, and  33 thereafter we move into parliamentary supremacy.  34 LAMBERT, J.A.:  When it's being claimed, it's an Executive Act  35 of the Sovereign rather than an Act of Parliament?  36 MS. MANDELL:  That's right.  37 LAMBERT, J.A.:  When it's being regulated after it is claimed,  38 it's appropriate that it be regulated by parliament?  39 MS. MANDELL:  Exactly.  40 LAMBERT, J.A.:  Is that right?  41 MS. MANDELL:  It's exactly right.  I was reading to you, your  42 lordships, the cases that have said that of this  43 exercise of the prerogative in respect of the Royal  44 Proclamation, its force as a statute is analogous to  45 the status of the Magna Carta.  That's how it's been  46 described.  And I'm dropping down to Mr. Justice  47 Hall's comments in Calder: 740  1 "In respect of this Proclamation, it can be said  2 that when other exploring nations were showing  3 a ruthless disregard of native rights England  4 adopted a remarkably enlightened attitude  5 towards the Indians of North America.  The  6 Proclamation must be regarded as a fundamental  7 document upon which any just determination of  8 original rights rests.  Its effect was  9 discussed by Mr. Idington, J., in this court in  10 The Province of Ontario v. Dominion of Canada  11 case" --  12  13 Where he described the Proclamation as:  14  15 "A line of policy begotten of prudence, humanity  16 and justice adopted by the British Crown to be  17 observed in all future dealings with the  18 Indians in respect of such rights as they might  19 suppose themselves to possess was outlined in  20 the Royal Proclamation of 1763 erecting, after  21 the Treaty of Paris in that year, amongst  22 others, a separate government for Quebec, ceded  23 by that treaty to the British Crown.  24 That policy adhered to thenceforward, by those  25 responsible for the honour of the Crown led to  26 many treaties whereby Indians agreed to  27 surrender such rights as they were supposed to  28 have in areas respectively specified in such  29 treaties."  30  31 And if I could ask your lordships to turn to the  32 case after the pink divider.  This is the case of Lord  33 Denning, his last decision on the bench, in the case  34 of Secretary of State.  And he, of the Royal  35 Proclamation, said this, and I'm reading from page 647  36 under "The Effect of the Proclamation":  37  38 "The Royal Proclamation of 1763 had great impact  39 throughout Canada.  It was regarded as of high  40 constitutional importance.  It was ranked by  41 the Indian peoples as their Bill of Rights,  42 equivalent to our own Bill of Rights in England  43 80 years before."  44  45 I'm going to drop down to the paragraph that begins:  46  47 "To my mind the Royal Proclamation of 1763 was 741  1 equivalent to an entrenched provision in the  2 constitution of the colonies in North America.  3 It was binding on the Crown, 'so long as the  4 sun rises and the river flows'.  I find myself  5 in agreement with what was said a few years ago  6 in the Supreme Court of Canada" --  7  8 And I've already read you the passage where he agrees  9 with Mr. Justice Hall in Calder.  And if I could turn  10 over the page to 648, he says:  11  12 "The Proclamation of 1763 governed the position  13 of the Indian peoples for the next 100 years at  14 least.  It still governs their position  15 throughout Canada, except in those cases where  16 it has been supplemented or superseded by a  17 treaty with the Indians.  It still is the basis  18 of the rights of the aboriginals in those  19 provinces of Nova Scotia and New Brunswick."  20  21 And he was quoting in that from the cases of Isaac and  22 Polchies.  If I can drop down to the end of the page  23 on the paragraph that says "Save for that reference",  24 I'm going to read:  25  26 "But I have no doubt that all concerned regarded  27 the Royal Proclamation of 1763 as still of  28 binding force.  It was an unwritten provision  29 which went without saying.  It was binding on  30 the legislature of the Dominion and the  31 provinces just as if there had been included in  32 the statute a sentence:  'The aboriginal  33 peoples of Canada shall continue to have all  34 their rights and freedoms as recognized by the  35 Royal Proclamation of 1763."  36  37 And, my lords, if I could ask you to turn to the next  38 case beyond the pink divide, this is the proposition  39 that the Royal Proclamation was like an entrenched  40 provision of the Constitution within the meaning of  41 Section 91(24), which, as stated by Judge Denning, was  42 not a new one, it had been stated in the Seybold case,  43 and reference is made of that by Mr. Justice Norris in  44 White and Bob, beginning with the passage:  45  46 "In Ontario Mining v. Seybold, Chancellor Boyd  47 emphasizes the importance of uniformity of 742  1 administration of Indian affairs and points out  2 that the Proclamation of 1763 has been carried  3 forward into Section 91(24) of the B.N.A. Act,  4 and that the provisions in favour of the  5 Indians are to be construed broadly in their  6 favour."  7  8 And then if I could ask you to turn over the page, Mr.  9 Justic Norris concludes:  10  11 "I am in complete agreement with the statement  12 of Sissons, J., to the extent that it applies  13 to the respondent Indians on this appeal."  14  15 And quoting from the Koonungnak case, he says:  16  17 "This Proclamation has been spoken of as the  18 'Charter of Indian rights.'  Like so many great  19 charters in English history, it does" --  20  21 That should be:  22  23 "-- does not create rights but rather affirms  24 old rights.  The Indians and Eskimos had their  25 aboriginal rights and English laws has always  26 recognized these rights."  27  28 And I'm going to ask your lordships to turn over  29 to the next case.  These following cases are not cases  30 where the Royal Proclamation itself was directly  31 addressed, but the principles of the Proclamation are  32 relied upon as fundamental principles in the course of  33 decision-making.  In the case of Sioui, I'm reading  34 from the paragraph which begins "The appellant then  35 argued", and I'm going down to the sentence beginning:  36  37 "The purpose of the Proclamation was first and  38 foremost to organize, goegraphically and  39 politically, the territory of the new American  40 colonies, namely Quebec, East Florida, West  41 Florida and Grenada, and to distribute their  42 possession and use.  It also granted certain  43 important rights to the native peoples and was  44 regarded by many as a kind of charter of rights  45 for the Indians."  46  47 And the court cites White and Bob and Calder and the 743  1 Secretary of State.  And if I could ask your lordships  2 to turnover to the next case, this is the Mitchell  3 case, a decision which came out in the Supreme Court  4 of Canada trilogy of Mitchell, Sparrow and Sioui, at  5 the same time.  I'm reading from the paragraph "In  6 summary":  7  8 "In summary, the historical record makes it  9 clear that ss. 87 and 89 of the Indian Act, the  10 sections to which the deeming provision of s.  11 90 applies, constitute part of a legislative  12 'package' which bears the impress of an  13 obligation to native peoples which the Crown  14 has recognized at least since the signing of  15 the Royal Proclamation of 1763."  16  17 And finally, my lord, I'm going to ask you to turn  18 over to the next case, which is the Sparrow case, and  19 I'm going to read from the paragraph which is  20 beginning:  21  22 "It is worth recalling that while British policy  23 towards the native population was based on  24 respect for their right to occupy their  25 traditional lands, a proposition to which the  26 Royal Proclamation of 1763 bears witness" --  27  28 And then the court goes on to talk about co-existence  29 between the two titles.  And later in the judgment, if  30 you could turn over the page, the court is talking  31 about the reassessment and recognition in government  32 policy:  33  34 "In the light of its reassessment of Indian  35 claims following Calder, the Federal Government  36 issued 'a statement of policy' regarding Indian  37 lands.  By it, it sought to 'signify the  38 Government's recognition and acceptance of its  39 continuing responsibility under the British  40 North America Act for Indians and lands  41 reserved for Indians', which it regarded 'as an  42 historic evolution dating back to the Royal  43 Proclamation of 1763, which, whatever  44 differences there may be about its judicial  45 interpretation, stands as a basic declaration  46 of the Indian people's interests in land in  47 this country. 744  1 And finally, my lords, I'm going to ask you to  2 turn to the last section, which is Section 25 of the  3 Charter.  And Section 25, as I understand it, operates  4 like a shield.  It's not a sword like Section 35 is,  5 but it is a section which prevents the exercise of  6 individual rights of the Charter being interfering of  7 the rights which under Section 25 are recognized under  8 the Royal Proclamation:  9  10 "The guarantee in this Charter of certain rights  11 and freedoms shall not be construed so as to  12 abrogate or derogate from any aboriginal,  13 treaty or other rights or freedoms that pertain  14 to the aboriginal peoples of Canada including  15 a)  any rights or freedoms that have been  16 recognized by the Royal Proclamation  17 of 1763."  18  19 And, my lords, what I say in summary, and I'm at page  20 4 of my speaking notes, is that the Royal Proclamation  21 should be given a prospective application because it  22 reflects principles of a constitutional nature which  23 is defining of the relationship between the Crown and  24 several nations of Indians who would come under the  25 Crown's sovereignty during the lifetime of the  2 6 instrument.  27 I have to say, my lords, they are principles which  28 have been speaking at the highest level for over 200  29 years.  These aren't new principles and they're not  30 forgotten principles.  I don't know of any other set  31 of principles in our constitution which have been so  32 long speaking and of such a basic nature.  33 My lords, the second point that I want to address  34 is that the words of the Proclamation and the judicial  35 authorities compel a prospective application, and I'm  36 now going to address the second main point, which is  37 beginning in the summary on page 4.  As well as having  38 been recognized as representing fundamental  39 principles, the Proclamation has also been held to  40 have the force of statute in the colony.  And if I  41 could ask your lordships to turn to tab 7, I'll run  42 you through a number of the higher court decisions  43 which have determined this.  The first case in tab 7  44 is Easterbrook, and I've already advised your  45 lordships that it was a contest between somebody who  46 received a grant from the Indians contrary to the  47 terms of the Proclamation.  And in the course of the 745  1 judgment, at page 217 the court said, and I'm at the  2 bottom of the page under the paragraph which begins  3 "The facts":  4  5 " seems to be clear enough that although  6 the lease was ineffective and void at law, by  7 reason of the absence, of any authority on the  8 part of the grantors to make it, and for  9 non-compliance with the peremptory" --  10  11 HUTCHEON, J.A.:  Where are we?  12 MS. MANDELL:  I'm sorry, my lord, it's tab 7, Easterbrook, page  13 217:  14  15 "-- for non-compliance with the peremptory  16 requirements of the proclamation" --  17  18 And these are the words:  19  20 "-- which have the force of statute."  21  22 And the court goes on to describe what the  23 significance of that is.  And, my lords, if I could  24 turn you to the next case, which is after the pink  25 tab, which is Lady McMaster, and it's the same facts  26 as the other.  Page 72, at the last paragraph of the  27 case:  28  29 "The Proclamation of 1763, as has been held, has  30 the force of a statute and so far therein as  31 the rights of the Indians are concerned, it has  32 never been repealed."  33  34 LAMBERT, J.A.:  Can I just ask a point by way of clarification.  35 You may already have explained this and I missed it,  36 but all these cases you're referring to and just  37 giving us just a page of, have we got them elsewhere  38 in full --  39 MS. MANDELL:  Yes, my lords.  You will see that at the top of  40 the page, every page, I've handwritten A-3, 64 at the  41 top of every tab where there's a case that's been set  42 out.  I will let you know where you will find them in  43 your authorities.  44 LAMBERT, J.A.:  Yes, thank you.  Sorry to hold you up.  45 MS. MANDELL:  Sorry I hadn't mentioned that.  I'm reading now  46 from Calder, which is just behind the Lady McMaster  47 case, and this is Mr. Justice Hall: 746  1 Parallelling and supporting the claim of the  2 Nishgas that they have a certain right or title  3 to the lands in question is the guarantee of  4 Indian rights contained in the Proclamation.  5 This Proclamation was an Executive Order having  6 the force and effect of an Act of Parliament."  7  8 And then, my lords, if I could turn you to the next  9 case, which this is Mr. Justice Norris speaking in  10 White and Bob, and this is the second paragraph from  11 the bottom beginning:  12  13 "The effect of the judgment of Lord Chief  14 Justice Mansfield in Campbell and Hall, is that  15 the Royal Proclamation is declared to have been  16 the Imperial Constitution of Canada during the  17 years 1763-1774 and had the effect of a  18 statute."  19  20 Quoting Lady McMaster:  21  22 "The Proclamation of 1763, as has been held, has  23 the force of a statute, and so far therein as  24 the rights of the Indians are concerned, it has  25 never been repealed."  26  27 And finally, my lords, I'm reading from Mr. Justice  28 Strong in the St. Catherine's Milling case, and I'm  29 reading from the paragraph in the middle beginning:  30  31 "As I have already said, we are bound to regard  32 this proclamation as having all the force of a  33 statute, and as such it must be subject to the  34 established rules of statutory construction."  35  36 And, my lords, if I could ask you to turn to tab  37 8, I'm going to now talk about the established rules  38 of statutory construction.  And I say that as a  39 general rule a public enactment employing general  40 words is usually understood to apply to all entities  41 falling within its scope at any time during its life,  42 even if new events are not anticipated.  And this  43 is -- I'm citing Maxwell, which is at tab 8.  He says:  44  45 "The language of a statute is generally extended  4 6 to new things which were not known and could  47 not have been contemplated when the Act was 747  1 passed, when the Act deals with a genus and the  2 thing which afterwards comes into existence was  3 a species of it.  Thus the provision of Magna  4 Carta which exempted lords from the liability  5 of having their carts taken for carriage was  6 held to extend to degrees of nobility not known  7 when it was made, such as dukes, marquises and  8 viscounts.  9 So the Engraving Copyright Act, which imposed a  10 penalty for piratically engraving, by etching  11 or otherwise, or 'in any other manner' copying  12 prints and engravings, applied to copying by  13 photography, though that process was not  14 invented until more than a century after the  15 Act was passed.  And Edison's telephone was  16 held to be a 'telegraph' within the meaning of  17 the Telegraph Act, even though it was unknown  18 in 1869.  Similarly, bicycles were held to be  19 'carriages' within provision of the Highway Act  20 against furious driving, and tricycles capable  21 of being propelled by steam to be 'locomotives'  22 within the Locomotives Act, though not invented  23 when these Acts were passed.  24 Where an Act of 1790 exempted ferry proprietors  25 from assessment to any 'tax... whatsoever' in  26 respect of the ferry, it was held that the  27 exemption extended to income tax even though  28 that tax was first imposed considerably after  29 1790."  30  31 Those are cases, my lord, where, especially the  32 Edison Telegraph case, where I'm sure judges now would  33 read it and wish they never would have said half of  34 that.  It's an analysis of why a telephone is a  35 telegraph.  In any event, the principle I still rely  36 upon, and I turn your lordships to tab 9, which is our  37 Interpretation Act, and section 10 says that:  38  39 "The law shall be considered as always speaking,  40 and whenever a matter or thing is expressed in  41 the present tense, it shall be applied to the  42 circumstances as they arise, so that effect may  43 be given to the enactment and every part  44 thereof according to its true spirit, intent  45 and meaning."  46  47 I say that this makes sense.  It would be awkward, 748  1 were it not so, as express words would be necessary in  2 each case for a lot of covert situations arising in  3 the future.  4 Now, my lords, I would like to -- I'm now in  5 the -- at tab 10, and in my speaking notes I'm  6 continuing:  Where a non-prospective effect is  7 desired, specific words are employed.  And I say  8 that's the rule.  That's the rule in Canada and that's  9 been the rule in Britain for a long time.  And I rely  10 upon what I believe to be the leading case, which is  11 the Associated Newspaper case, and it's extracted at  12 tab 10.  And in this case the House of Lords  13 considered an exemption from taxation granted by  14 public statute, which was stated to apply to all taxes  15 and assessments whatsoever.  It was contended that the  16 taxes applied only to those existing at the time of  17 the enactment, and the court stated that it referred  18 to taxes then existing or to be imposed.  And Lord  19 Haldane, who wrote with the majority at page 444 at  20 the bottom of the page, under the -- beginning with  21 the paragraph:  22  23 "I have dealt with the relevant authorities thus  24 fully in order to make it clear that, in my  25 opinion, they do not preclude us from  26 attributing to the words of the Act of George  27 III what seems to me to be their natural  28 operation."  29  30 So the natural operation is to construe the words  31 prospectively:  32  33 " operation which extends to future as well  34 as to then existing rates.  The result is it  35 becomes unnecessary to consider whether the  36 police rate or consolidated rate can be  37 regarded as being merely old rates imposed  38 under new statutory conditions and variations  39 which do not affect their identity with rates  40 existing antecedently to that statute."  41  42 And so he allows the appeal.  And if your lordships  43 can turn over a page, this is the judgment of Lord  44 Parker, and he's also speaking with the majority.  At  45 the bottom of page 457 he says:  46  47 "I can find no ground to imply any limitation on 749  1 the generality of the words 'all taxes and  2 assessments whatsoever' or to infer that there  3 was not an intention to maintain in perpetuity  4 the non-liability of the reclaimed lands to pay  5 local taxes and assessments, in return for the  6 perpetual charge placed upon them."  7  8 And, my lords, to that same effect is the case of  9 Beard v. Rowan, which you will find behind the pink  10 sheet in tab 10.  And this is a case where a Kentucky  11 statute which provided any alien who shall have  12 actually resided within the commonwealth for two years  13 will be entitled to hold lands.  And the question  14 before the court was whether or not that applied to  15 embrace aliens prior to the Act or whether the Act  16 applied prospectively.  And at page 315, the number is  17 at the top of the page, and it's the second page from  18 the end of the tab.  At the bottom of the page,  19 beginning:  20  21 "This is certainly too narrow an interpretation  22 of this law to meet the obvious intention of  23 the Legislature, even admitting that such is  24 the strict grammatical construction.  25 The preamble in the act may be resorted to aid  26 in the construction of the enacting clause,  27 when any ambiguity exists.  That preamble  28 evidently shows that the intention of the  29 Legislature was to make a general provision for  30 removing the disability of aliens to hold real  31 estate, and this, founded upon state policy,  32 doubtless for the purpose of encouraging the  33 settlement of the country; and this object  34 would be in a great measure defeated by  35 restricting the act to aliens who shall have  36 resided two years in the State before the  37 passing of the act."  38  39 So he looks to the purpose of the statute.  40 And, my lords, I would like to go -- I would like  41 to have your lordships turn back to the Proclamation,  42 which is found at tab 2, and to section -- and to turn  43 to the part 4, because I say that applying these  44 considerations to the Proclamation, a proper  45 construction demands a prospective application.  I say  46 there's nothing in the language of the Proclamation to  47 reverse the presumption favouring a prospective 750  1 operation.  I say that the words of the broadest  2 application are employed and the language is uniformly  3 comprehensive.  And if your lordships will turn, for  4 example, to paragraph 1, which is beside the Roman  5 Numeral T you will see that this is forbidding grants,  6 and on the words "on any land whatsoever", "whatever",  7 this is the fifth line down, on any lands whatever.  8 In paragraph 2, "reserved for Indians", and you will  9 see the words "all the lands and territories not  10 included within the limits of the government".  11 Paragraph 3, "described settlement upon any lands  12 within the countries above described or on any other  13 lands remaining unceded".  And paragraph 4A,  14 "prohibits private purchase of any lands reserved to  15 the said Indians".  And I say that there is no hint of  16 temporal restraints whatsoever within the language of  17 the Proclamation.  And I referred your lordships  18 earlier to the part -- to Part 2 of the Proclamation,  19 where there's actually an expressed hereafter clause  20 where the Governors will take -- "have the power to  21 make treaties and grant lands which now or hereafter  22 shall be within our power to dispose".  23 Now, your lordships see that the preamble reads  24 that:  25  26 "It is essential to our interests and the  27 security of our colonies."  28  29 Now, this is the words:  30  31 "That the several nations or tribes of Indians  32 with whom we are connected."  33  34 Now, the question is does the -- do these Indians  35 indicate a fixed group of designated tribes, or does  36 it mean all tribes who may from time to time come  37 within the dominion of the Crown.  And I say that  38 there's a neutral test, and that's paragraph 4B of the  39 Proclamation, and this is the one where there's the  40 proposition that the governors will grant licences for  41 those people who want to trade.  And you will see  42 "with the said Indians".  And, your lordships, you  43 will notice that "said Indians" repeats seven times,  44 they all come back to the preamble and, again, it  45 appears in the trade provision, and I say that the  46 date when a tribe first fell under British sovereignty  47 doesn't appear relevant to the underlying policy, 751  1 which was to regulate the entire Indian trade  2 conducted in that period.  In my submission, it  3 strains the section to believe that the measures  4 adopted a fixed line, which is to represent the outer  5 limits of British dominion at the time of the  6 enactment beyond which unlicenced trading would be  7 permissible even in areas subsequently brought under  8 the Crown's domain.  And I say that that assists us in  9 the interpretation of the several nations to be  10 Indians who from time to time will come under the  11 domain of the Crown.  12 I ask the question do the provisions regarding  13 Indian land apply only to those held by the Crown in  14 1763 or also to those acquired subsequently.  And in  15 my submission you defeat the underlying policy of the  16 land provisions.  The measures aren't novel, they  17 represent a consolidation of principles and practices  18 already prevailing in the old colonies.  The intention  19 was to bring the various British holdings, both old  20 and new, under a uniform regime and to infuse the  21 whole with a global rather than a piece-meal policy,  22 and there's no indication in the Proclamation that the  23 Indian nations of British Columbia required less  24 protection by the just and reasonable policy from the  25 frauds and abuses which the Proclamation is designed  26 for.  27 And similarly, I say that the Indian territory  28 furnishes a residual category comprising the entirety  29 of British territory, and I say this flows from the  30 fact that there's no western boundary pronounced and,  31 finally, that with respect to the fugitive clause, in  32 our submission it makes the most sense to construe the  33 fact that the fugitives would be in Indian country  34 able to be brought back to the colonies, wherever out  35 west they may happen to have taken refuge.  36 And so, my lords, I would turn back to the  37 speaking notes.  And I say that it's an improbable  38 interpretative consequence which would occur if a  39 western boundary to the Indian country is implied.  40 Settlers who are forbidden west of a frontier line  41 could leap-frog beyond Indian country as it existed at  42 the time of the enactment and colonize far western  43 areas.  Fugitives could take safe haven in lands  44 beyond Indian country as it existed in 1763, fur  45 traders could trade without regulation as they  46 encountered Indians westward of the artificial line.  47 Indian nations beyond the implied line would be 752  1 unprotected by frauds and abuses.  2 My lords, the trial judge rested his decision  3 against prospective application on an assumption,  4 which I say is stated without reasons, that lands not  5 specifically known to the Crown in 1763 could not have  6 been British within the meaning of a British  7 enactment.  And we've argued above, that the normal  8 rules of statutory construction extend the reach of  9 the statutes to apply to all entities falling within  10 its scope during its life.  But the cases also hold  11 that an Imperial enactment drafted to apply to British  12 territories will cover colonies created subsequent to  13 its enactments.  And the trial judge failed to give  14 effect to these decisions.  15 And, my lords, I would like to turn you now to the  16 first in what I think of as the leading of these  17 cases.  It's found at tab 11, and it's the Post  18 Office and Estuary Radio case.  This -- there were two  19 decisions based on parallel facts, Post Office and  20 Estuary  and Kent Justice, I will refer you to both of  21 them.  The question involved -- arose out of the fact  22 that the defendant was broadcasting from a disused  23 fort, which was three miles from the English coast,  24 without a licence, and this was unlawful under the  25 Wireless Telegraph Act.  In 1949, when the Act was  26 made, the fort wasn't within U.K. territory or  27 territorial waters.  It was by, again a prerogative  28 instrument through Order-in-Council, brought within  29 the British territorial waters in 1958, and these  30 defendants were broadcasting.  And the question which  31 the court had to address was whether the geographic  32 extent of the United Kingdom territorial waters was  33 taken to be in 1949 when the Act was first passed or  34 subsequently.  And Mr. Justice Diplock for the court  35 said at page 753, I'm reading at the paragraph which  36 begins "It still lies", but I'm dropping down to where  37 it begins:  38  39 "And so, when any Act of Parliament refers to  40 the United Kingdom or to the territorial waters  41 adjacent thereto those expressions must prima  42 facie be construed as referring to such area of  43 land or sea as may from time to time be  44 formally declared by the Crown to be subject to  45 its sovereignty and jurisdiction as part of the  46 United Kingdom or the territorial waters of the  47 United Kingdom, and not as confined to the 753  1 precise geographical area of the United Kingdom  2 or its territorial waters at the precise moment  3 at which the Act received the Royal Assent.  4 The area comprised within the United Kingdom  5 and its territorial waters varies in any event  6 from time to time by natural processes as parts  7 of the coastline change by erosion or  8 accretion.  The accreting shingle bank at  9 Dungeness is no Alsatia in which a citizen  10 enjoys immunity from the law of the land.  The  11 area to which an Act of Parliament of the  12 United Kingdom applies may vary too as the  13 Crown, in the exercise of its prerogative,  14 extends its claim to areas adjacent to the  15 coast of the United Kingdom in which it did not  16 previously assert its sovereignty.  On the  17 construction of the Act of 1949 we agree with  18 the majority judgment of the Divisional Court  19 in Kent Justices."  20  21 My lords, I've put Kent Justices behind the next  22 divide, and I would like to take you to the judgment,  23 which was the majority of the court.  It is Lord  24 Parker, who was writing for the court, at page 564.  25 And I'm going to read portions of his judgment,  26 beginning at the paragraph "For my part":  27  28 "For my part, I think that the proper approach  29 to this question is to look first at the  30 Wireless Telegraph Act 1949.  The real issue,  31 as it seems to me, in the present case is what  32 Parliament meant by the expression 'territorial  33 waters'.  Does it mean 'territorial waters' as,  34 to put it quite generally, accepted by this  35 country at that time, or does it mean  36 territorial waters from time to time according  37 to international law, or according to the  38 exercise of the sovereignty by the Crown?  In  39 the absence of a definition, and there is none  40 in the Act, I have come to the conclusion that  41 that expression 'territorial waters' must mean  42 waters over which from time to time the Crown  43 may declare sovereignty."  44  45 And if I could drop down to the sentence which begins:  46  47 "I have come to that conclusion in the first 754  1 place because, as it seems to me, if it was  2 intended that the expression 'territorial  3 waters' was to be confined to a precise limit,  4 then known, it would have been perfectly easy  5 to provide, as indeed was provided in the Act  6 of 1878, for an express limitation of  7 territorial waters."  8  9 The same ratio, I say, is the Associated Press case,  10 where if you're not going to have it applied  11 prospectively the Act should say so.  12  13 "There is no limitation.  Secondly, as it seems  14 to me, although I have said it is open to the  15 Sovereign to declare sovereignty over an area  16 greater than is strictly pemitted by  17 international law, international law will be  18 the framework within which that declaration of  19 sovereignty will in general be made, and it is  20 well known that international law in this  21 matter has been throughout in a state of flux."  22  23 And if I could drop down finally to the sentence that  24 begins:  25  26 "Thirdly, as it seems to me, this is a matter of  27 sovereignty; it is a matter of an extension of  28 sovereignty over the open seas, and as such is  29 peculiarly a matter for the Crown from time to  30 time under the prerogative to determine.  One  31 would expect that to be done from time to time  32 without the need for specific legislation."  33  34 And, my lords, if I could just lastly ask you to turn  35 to the next divide, we had to get this off of  36 microfilm, but I tried to find what I was told was the  37 most authoritative general textbook on what "colonies"  38 might have meant in the mid-1800s, and I was led  39 finally to Clark, in a summary of Colonial law, and I  40 take from that what he says:  41  42 "Nor is every act of the British Parliament --"  43  44 My lords, it's after the divide, after the Kent  45 Justices, it's at the top of the page:  46  47 "Nor is every act of the British Parliament even 755  1 within the lawful compass of the legislative  2 authority binding on the colonies."  3  4 And then he goes down:  5  6 "But this is open to a very important exception,  7 that of all statutes which are manifestly of  8 universal policy, and intended to affect all  9 our transmarine possessions, at whatever period  10 they shall be acquired" --  11  12 And then he cites the Navigation and the Slavery Act,  13 and then at page 16, beginning with the paragraph:  14  15 "Again, acts passed since the acquisition of a  16 colony" --  17  18 That's not purely analogous to us, but the language is  19 important:  20  21 "-- or at least subsequent to the establishment  22 of its legal constitution by royal commission  23 or act of parliament, do not extend to it,  24 unless they appear to have been passed with the  25 intention of being so extended.  This  26 intention, however, may appear either by  27 mentioning the colony by name, or by general  28 designation, such as 'colonies', or 'the West  29 Indies', or 'the Dominions of His Majesty', or  30 'the British possessions abroad'; or by  31 reasonable construction."  32  33 And although this is not a completely helpful on-point  34 description, I take it from it that the description  35 "colonies" or "the dominions of His Majesty" or  36 "British possessions abroad" are construed as  37 categories of territory to which the Acts -- in this  38 case they're talking about an Act of Parliament --  39 would apply by virtue of that general description.  40 And lastly, my lords, at the end of this tab I've  41 included a passing remark by Lord Denning at page 647,  42 and in dealing with the Royal Proclamation I'm reading  43 from the paragraph which begins "The Royal  44 Proclamation", and then I'm reading from the sentence:  45  46 "Lord Mansfield emphasized that by it the King  47 made an immediate and irrevocable grant to all 756  1 who were or should become inhabitants."  2  3 And I just say at that -- by Lord Denning's language,  4 looking forward to people coming into the colonies as  5 it will be required.  6 My lords, I'm back to my speaking notes, and I'm  7 reading at the bottom of page 6:  As colonies  8 expanded, Indian country was incorporated into  9 colonial boundaries and the absolute prohibition on  10 purchases, grants and settlements without leave was  11 substituted for the qualified regime where the  12 governors may purchase Indian land and granted them to  13 settlers.  The cases have made it clear that the  14 transfer of land and Indians from Indian country to  15 within a colonial boundary did not per se affect the  16 existence or character of the Indian interests in the  17 unceded lands.  Rather, the purchase provisions of the  18 Royal Proclamation applied.  And I give for an example  19 the expansion of Quebec in 1774, which took in a large  20 tract of Indian country but did not modify the Indian  21 rights to the land.  And this was the case of the St.  22 Catherine's Milling, where that territory had  23 initially been Indian country, and with the passage of  24 the Quebec Act it became part of the new province.  25 And if I could ask your lordships to turn to tab 12,  26 this point has been judicially considered and, in my  27 submission, it's been settled by the Supreme Court of  28 Canada and the Privy Council.  Mr. Justice Strong, at  29 page 632 -- sorry, I'm going to have to skip -- I want  30 to take you to tab 13.  I will come back to tab 12  31 later.  Mr. Justice Strong at the Privy Council:  32  33 "I now proceed to consider the objections which  34 have been made on behalf of the respondent to  35 the arguments based on the Proclamation of  36 1763.  First, it is said that the Proclamation  37 was wholly repealed by the Quebec Act."  38  39 Now, my lords, I'm not going to read you his analysis.  40 It's from page 629 to -- it's a very full analysis,  41 and it goes to page 635, but his conclusion is that  42 the Proclamation was repealed by the -- in respect of  43 the Colonial boundaries by the Quebec Act, but that  44 made no difference to the interests of the Indian  45 people in their lands, which was the same in both  46 cases.  And Mr. Justice Taschereau, at page 649, says:  47 757  1 "From this result of my interpretation of it it  2 is unnecessary, for my determination of this  3 case, to consider how far the sections of the  4 proclamation to which I have alluded, have been  5 affected by the Act of 1774.  I may,  6 nevertheless, remark, that any right the  7 Indians might have previously had could not, it  8 seems, have been affected by this act, as by  9 its third section it is specifically provided  10 and enacted that 'nothing in this act contained  11 shall extend, or be construed to extend, to  12 make void, or to vary any right, title, or  13 possession derived under any grant, conveyance,  14 or otherwise howsoever, of or to any lands  15 within the said Province."  16  17 So he relied upon the saving provision in the Quebec  18 Act and said that the Indian interest wasn't affected.  19 And the Privy Council, my lords, I'm not going to take  20 you back to the passages, but I've enclosed the  21 decision of Lord Watson at page 53 and 54.  At 53 he  22 recites the discussion and then, as your lordships  23 know, he found that the Indian interest in the land  24 was one which was a burden on the title of the Crown.  25 And, finally, if I could ask you to turn to the last  26 case in the section, which is again Lady McMaster, and  27 I'm reading at the bottom of the page:  28  29 "I am unable also to concur in the defendant's  30 contention that the Quebec Act, which enlarged  31 the limits of the Province of Quebec, destroyed  32 the rights of the Indians in the lands reserved  33 under the proclamation.  This I think has been  34 authoritatively settled."  35  36 And he's referring at that point to the St.  37 Catherine's Milling case.  My lords, I would like to  38 then say -- Mr. Justice Wallace, you're nodding.  39 WALLACE, J.A.:  No.  I just thought you needed a break.  40 MS. MANDELL:  I'm trying to make time up from this morning, so  41 If I move too fast, I hope you would stop me.  42 WALLACE, J.A.:  I'm concerned about you, not myself.  43 TAGGART, J.A.:  We've come to a pause, so maybe it would be a  44 good time to take five minutes.  45 MS. MANDELL:  Okay.  46 THE REGISTRAR:  Order in court.  This court stands adjourned for  47 a short recess. 75?  1 AFTERNOON RECESS  2  3 THE REGISTRAR:  Order in court.  4 MS. MANDELL:  My lords, I just wanted to pause and answer, Mr.  5 Justice Lambert, your question about the prerogative  6 instruments and statutes applicable -- Imperial  7 statutes applicable to the colony.  I was over the  8 break reminded, and it's true, that the Imperial  9 government could always, through their statutes, pass  10 acts applicable to the colony.  That's what the  11 Colonial Laws Validity Act finally addressed, and that  12 was to constrain certain of those Acts which would be  13 applicable to the colony and, finally, by the Statute  14 of Westminster, that was no longer something which the  15 Imperial Parliament could do.  But my answer to you  16 about the prerogative remains the same, there were two  17 ways that the Imperial government could legislate in  18 respect of the colony, and the most common in terms of  19 the government in establishing new colonies was  20 through the prerogative.  21 LAMBERT, J.A.:  Thank you.  22 MS. MANDELL:  I wanted to move into the Jurisdiction Acts.  I'm  23 referring in my speaking notes to page 7, and I would  24 ask your lordships to turn to tab 14 of my material.  25 My lords, you will remember that paragraph 5 of the  26 Proclamation empowered the Governors of the Colonies  27 to reach into Indian country and grab fugitives and  28 bring it back to the Colony to be tried.  But  29 immediately everyone realized that there were other  30 problems which that paragraph didn't address.  For  31 example, what happens when there's crimes in Indian  32 country and how was that going to be dealt with.  And  33 because of that particular problem we had a series of  34 Jurisdiction Acts which were passed beginning with the  35 Mutiny Act, which came in 1765, and it's found at tab  36 14, immediately after the Proclamation, where there  37 was acts passed to govern the question of justice or  38 the administration of justice in Indian country before  39 there was actually a colony established.  And I'm not  40 going to take you into the Act, but to advise your  41 lordships that in this Act, Article 25, and I'll leave  42 it for your lordships' viewing, was providing for the  43 apprehending and committing to safe custody there to  44 be delivered to the civil magistrate of the next  45 adjoining province any persons who were not soldiers  46 committing crimes and offences.  It was a fairly  47 straightforward provision. 759  1 Now, if your lordships could turn to tab 17.  This  2 was the next of the Jurisdiction Acts, and your  3 lordships will see that it was passed in 1803 and it's  4 titled 43 George II, Chapter 138.  That will become  5 significant to your lordships in due course.  And this  6 was an Act where it was recited that crimes and  7 offences have committed -- have been committed in the  8 Indian territory and other parts of America not within  9 the Provinces of Lower and Upper Canada.  And it  10 empowers through the Act, paragraph 11, that the  11 Governor may, by commission, authorize or empower  12 civil magistrates or Justices of the Peace, it says  13 for any of the Indian territories or parts of America  14 not within the limits of either of the said provinces.  15 And so there was actually the provision made to  16 provide for the -- for people commissioned to deal  17 with offences on the spot, and there was a provision  18 later that, in paragraph 3, that the offenders can be  19 tried by the courts in Upper and Lower Canada and  20 punished accordingly.  And I can advise your lordship  21 that Duncan McGillivray was the civil magistrate and  22 justice of the peace which was appointed in Indian  23 territory, and his appointment was pursuant to this  24 Act, and that's found at Exhibit 1028-9.  I'm not  25 going to take your lordships to it.  26 If I could turn you to tab -- see where I'm  27 going -- tab 19, this was the next of the Acts.  This  28 was in 1821, and your lordships will notice that the  29 tab is -- or the Act is 1 and 2 George IV.  And this  30 was an Act for the regulation of fur trade.  The  31 Hudson's Bay Company and the Northwest Company traders  32 were fighting and causing problems and difficulties,  33 and it was within the context of this that this Act  34 was passed.  And the Act empowered the King to make  35 grants to any company or persons for the exclusive  36 trade in furs and then with the Indians in all such  37 parts of North America as shall be specified in any  38 such grant or licence.  And that is found at page 94.  39 Your lordships will see that provision.  And if your  40 lordships will turn to 96, clause IV, they're  41 extending grants of exclusive trades, this -- the  42 first provision provided for the grant of exclusive  43 trades, and it was not -- this provision was that it  44 was not to interfere with citizens of the United  45 States beyond the Stony Mountains, and your lordships  46 will see that it's referring to a convention entered  47 into between His Majesty and the United States.  And 760  1 that's the convention of 1818, and you will find it in  2 our Exhibit 1039-11, which provided for joint  3 occupancy of the territory which is British Columbia,  4 the whole northwest coasts, by Britain and the United  5 States, until a more permanent resolution could be  6 arrived at.  And then there is provision in the next  7 paragraph that the courts of the adjudicator which  8 established an Upper and Lower Canada again can still  9 be used to try offenders and also to deal with the  10 crimes committed in Indian country.  But I'm just  11 going to ask you to drop down and begin with the  12 passage that begins:  13  14 "Provided always that all such Suits and Actions  15 relating to Lands, or to any Claims in respect  16 of land, not being within the Province of Upper  17 Canada, shall be decided according to the Laws  18 of that Part of United Kingdom called England,  19 and shall not be subject to or affected by any  20 Local Acts, Statutes, or Laws of the  21 Legislature of Upper Canada."  22  23 The King is still -- or at least the Parliament is  24 still maintaining a hold on the laws that affects  25 land.  26 And then finally at page 98, the appointment of a  27 justice of the peace, paragraph VIII, your lordships  28 will see that this is being appointed the language  29 "within the said Indian territories or other parts of  30 America as aforesaid."  And finally, my lords, if I  31 could ask you to turn to tab 21, this is the Act  32 which --  33 HUTCHEON, J.A.:  Before you leave that, in your speaking notes,  34 you say that --  35 MS. MANDELL:  Vancouver —  36 HUTCHEON, J.A.:  You say that the Jurisdiction Acts were  37 formally brought within the terms of the Royal  38 Proclamation, formally brought.  And I've been  39 expecting to see a reference to the Royal Proclamation  40 because of the way you frame your --  41 MS. MANDELL:  I'm sorry, I've made a leap which I hope it hasn't  42 been presumptuous, but what I've -- what I have done  43 is tracked the language of the Proclamation  44 conceptually in terms of Indian country, and I'm  45 tracing now the reach of Indian country into Vancouver  46 Island and the mainland.  47 HUTCHEON, J.A.:  But you're not saying we'll find it. 761  1 MS. MANDELL:  No, you're not going to find the words "Royal  2 Proclamation" in these Jurisdiction Acts.  3 HUTCHEON, J.A.:  Oh, I was looking for that.  4 MS. MANDELL:  But what you do have, in my submission, is you  5 have the paragraph V of the Proclamation being  6 extended in its operation through Indian country.  7 HUTCHEON, J.A.:  Right.  8 MS. MANDELL:  This is with respect to the justice and the  9 administration of Justice.  10 HUTCHEON, J.A.:  Yes.  11 MS. MANDELL:  And, my lords, if you will finally turn to tab 21.  12 This is an Act to provide for the administration of  13 justice on Vancouver Island, and at -- you will see in  14 the "whereas" clauses they're citing that all these  15 various Jurisdiction Acts have been passed, and if  16 your lordships will look in the column on the  17 second -- on page -- you can't really see it.  There's  18 two columns, one is the title "An Act To Provide For  19 the Administration of Justice".  The second column in  20 the side bar where they're explaining what it is that  21 this is doing, it's saying that 43 George III and  22 parts of 1 and 2 George the IV are repealed as to  23 Vancouver's Island.  Well, those two Acts, the first  24 is the 1803 Jurisdiction Act, and the second is the  25 1821.  And the text of this part is that it is:  26  27 "And whereas for the purpose of the colonization  28 of that part of the said Indian territories,  29 called Vancouver Island, it is expedient that  30 further provision should be made for the  31 administration of justice therein".  32  33 And then if you will drop down:  34  35 "-- that from and after the Proclamation of this  36 Act in Vancouver Island the said Act of" --  37  38 And these are the other two Acts:  39  40 "-- shall cease to have force then and to be  41 applicable to Vancouver Island aforesaid."  42  43 And so what is going on at this point is that the  44 Jurisdiction Acts of 1803 and 1821, which are  45 providing for the administration of justice in Indian  46 country, are now no longer applicable to Vancouver's  47 Island and instead for Vancouver's Island the 762  1 administration of justice is going to take the form as  2 prescribed under this Act.  And I say from that we  3 know that at least legislatively the Imperial  4 Parliament considered Vancouver's Island as part of  5 Indian country, at least by 1803.  6 Now, if your lordship will turn to the Act which  7 established the colony of the mainland, which is in  8 tab 22, again you will find that in the same column  9 the same two Jurisdiction Acts are being repealed, and  10 the clause which is doing it is beginning at Roman  11 Numeral IV, "and whereas an Act passed", and they go  12 through these Jurisdiction Acts, and if your lordships  13 will turn to page 188 at the bottom --  14 TAGGART, J.A.:  Tab?  15 MS. MANDELL:  Same tab, my lord.  I'm in the same case, this is  16 tab 22, the Act Which Establishes the Government of  17 British Columbia says:  18  19 "From and after the Proclamation of this Act in  20 British Columbia the said Act of the  21 forty-third Year of King George the Third, and  22 the said recited Provisions" --  23  24 Et cetera:  25  26 "The Provisions contained in such Act for giving  27 Force, Authority and Effect within the Indian  28 Territories and other parts of America to the  29 Process and Acts of the said Courts of Upper  30 Canada, shall cease to have Force in and to be  31 applicable to British Columbia."  32  33 The same recital, although not in precisely the same  34 words, as with Vancouver Island.  35 My lords, if you could turn to tab 23, I want to  36 go through the decision which has actually looked at  37 the Jurisdiction Acts in this context, the only case  38 which has done it has been Mr. Justice Norris in  39 White and Bob, and you will see at page 644,  40 beginning:  41  42 "The Proclamation of 1763 had the effect of a  43 statute" —  44  45 And he says :  46  47 "-- and the following statutes show that 763  1 Vancouver Island was formally brought within  2 the terms of the Royal Proclamation for the  3 purposes of the administration of justice by  4 the statutory application of the provisions of  5 the last paragraph thereof to that Island as  6 part of the Indian territory."  7  8 And then he proceeds to look at the 1803 Act, the 1821  9 Act, at page 645, he refers to the 1849 Act, which is  10 the Vancouver's Island Act, and then at the top of  11 page 646 he says:  12  13 "Thus not only was the policy set out in the  14 last paragraph of the Proclamation carried  15 through the three statutes as affecting the  16 Indian Territories, but Vancouver's Island was  17 stated in exact words in the Statute of 1849 to  18 be part of the Indian Territories - the  19 territories referred to in the Proclamation.  20 In my opinion the conclusion is irresistible  21 that before and at the time of the execution of  22 Exhibit 8" —  23  24 Which was the treaty in question:  25  26 "-- and on and after April 1867 when Vancouver  27 Island was being reconveyed to the Crown the  28 Proclamation applied to Vancouver Island and so  29 far as the Indian hunting rights are concerned,  30 it has never been repealed."  31  32 And I'm not taking you to it, my lords, but in the  33 next -- after the divide Mr. Justice Hall, in the  34 Calder case, agrees with Mr. Justice Norris insofar as  35 the mainland is also concerned.  So if I could --  36 TAGGART, J.A.:  Just before you pass on, in tab 19, this is the  37 Fur Trade Regulation.  38 MS. MANDELL:  Right.  39 TAGGART, J.A.:  Under paragraph 4 on page 96 there's a reference  40 to the convention entered into with the United States.  41 MS. MANDELL:  Yes.  42 TAGGART, J.A.:  By which it was agreed that any country upon the  43 northwest coast of America to the westward of the  44 Stony Mountains, I take it that that is the Rocky  45 Mountains.  4 6  MS. MANDELL:  Yep.  47  TAGGART, J.A.:  Should be free and open to the citizens and 764  1 subjest of the two powers for the term of ten years  2 from the date of the signature of that convention.  So  3 what happened to the Proclamation, assuming that it  4 had application to the west at that point and from the  5 way you describe it, what happened in that ten years,  6 did it just get hoisted or did it apply only to Brits,  7 or did the Yankees get it too?  8 MS. MANDELL:  This debate which is going on and reflected in the  9 1818 convention was not resolved until the Treaty of  10 Oregon in 1846.  It was finally permanently settled  11 that it would -- the countries would divide out, as  12 your lordships are aware, and when we say that the  13 assertion of sovereignty measures from that date, it  14 was from British Columbia at the time when all  15 international claims were finally resolved.  16 Now, I'm going to submit to you in a minute -- in  17 fact, I could -- I will say that the question as to  18 whether or not a territory falls within the claim or  19 in the domain of a sovereign is one of claim, it's not  20 one of proof.  I mean the country can claim it, and if  21 they do, as we saw with Post Office and Estuary, it's  22 an assertion by the Crown, and if they can -- if they  23 make that assertion internationally the domestic  24 courts aren't going to look behind it.  And what we  25 had for this territory was that -- which became  26 British Columbia, is you had Britain claiming it and  27 you had the United States claiming it, and for the  28 purposes of international law both would have to find  29 their resolution, but for the purposes of domestic  30 law, the domestic court won't look behind what the  31 international claim of the sovereign is.  It is for  32 the purposes of domestic law territory within the  33 British domain, and I will lead your lordships to the  34 cases and to the authorities which support that, but,  35 in our submission, in 1818 British -- this is Indian  36 territory for the purposes "or its other parts of  37 America", I probably should draw your lordships to the  38 fact that this phrase "or other parts of America"  39 hasn't been authoritatively looked at, but in any  40 event, we say that this is Indian territory, and that  41 it's part of the claim of Britain and that whether  42 Britain is able in 1846 to resolve that with the  43 United States or not, well that's going to be a matter  44 of international law for that resolution.  That's how,  45 in our submission, it would occur.  46 My lords, I'm going to briefly take you to two  47 cases, they're American cases, they're analogies, 765  1 they're not being tendered for your lordships as  2 precedent, but in the United States after the Royal  3 Proclamation was passed many have said that it was one  4 of the impetouses for the American Revolution, because  5 they didn't want the -- many of the Americans didn't  6 want to live under the terms which the Proclamation  7 laid down.  But, nevertheless, shortly after the  8 Revolution the first Trade and Intercourse Act was  9 passed and some but not all of the provisions of the  10 Royal Proclamation were enacted by the First Congress.  11 And I've set out at tab 24 the Trade and Intercourse  12 Act and I'm going to ask your lordships to look at  13 Section IV, which is found at page 138.  And this is a  14 section which is enacted and declared that:  15  16 "No sale of land made by any Indians, or any  17 nation or tribe of Indians within the United  18 States, shall be valid to any person or  19 persons, or to any state, whether having the  20 right of pre-emption to such lands or not,  21 unless the same shall be made and duly executed  22 at some public treaty held under the authority  23 of the United States."  24  25 And recently cases have interpreted, well, what does a  26 nation or tribe of Indians mean under the Trade and  27 Intercourse Act.  And they've also interpreted what  28 does the land, "such land" mean under the Trade and  29 Intercourse Act.  Does it include all tribes of  30 Indians, does it include all unceded territory, or are  31 there exceptions which can be implied to the general  32 words.  And the two cases which have been considered  33 in respect of those questions, I would like to take  34 your lordships to again for the analogies.  The first  35 is the Passamaquoddy case, and it's found just past  36 your divider.  This is a case where the issue to be  37 determined was whether or not Indians within the  38 Passamaquoddy tribe included -- are included under the  39 Nonintercourse Act, and it was submitted on behalf of  40 those that didn't want the Indian people included that  41 they had a unique relationship with the State of Maine  42 and with Massachusetts, which arose as a result of the  43 very treaty which was in issue, and that the federal  44 government had never recognized them as a tribe, that  45 their relationship had primarily been with the State,  46 and so it wasn't to be construed under the Trade and  47 Intercourse Act that they were a tribe. 766  1 And if I could turn your lordships to page 377 of  2 the decision, beginning with the paragraph:  3  4 "But while Congress' power to regulate commerce  5 with the Indian tribes, includes authority to  6 decide when and to what extent it shall  7 recognize a particular Indian community as a  8 dependent tribe under its guardianship."  9  10 And they cite Sandoval:  11  12 "Congress is not prevented from legislating as  13 to tribes generally; and this appears to be  14 what it has done in successive versions of the  15 Nonintercourse Act.  There is nothing in the  16 Act" --  17  18 Again, the same language as the cases we've already  19 seen:  20  21 "There is nothing in the Act to suggest that  22 'tribe' is to be read to exclude a bona fide  23 tribe not otherwise federally recognized.  Nor,  24 as the district court found, is there evidence  25 of congressional intent or legislative history  26 squaring with appellants' interpretation.  27 Rather we find an inclusive reading consonant  28 with the policy and purpose of the Act.  That  29 policy has been said to be to protect the  30 Indian tribes' right of occupation, even when  31 that right is unrecognized."  32  33 And then at page 378, the conclusion, which is just  34 above the first full paragraph:  35  36 "Under such circumstances, the absence of  37 specific federal recognition in and of itself  38 provides little basis for concluding that the  39 Passamaquoddies are not a tribe within the  4 0                   Act."  41  42 The same -- my lords, the same kind of analysis ought  43 to prevail in respect of the several nations and  44 tribes of Indians which are dealt with in the Royal  45 Proclamation.  46 Now, if I could ask your lordships to turn to tab  47 25, this is the second of the cases, the Mohegan case, 767  1 and it deals with an interpretation, well what are the  2 lands that are involved.  And in the -- this case it  3 was asserted that the only lands which were to be  4 governed by the Act were lands which were in Indian  5 country and not lands which were at that time included  6 with the existing colonies.  And the court was asked  7 to see whether or not the phrase "land" was intended  8 to be the land rights of Indian people in North  9 America or had the restricted meaning of being just  10 land within Indian country.  And, my lords, I'm just  11 going to ask you to turn to page 615, and under the  12 "History of Indian Relations", I'm not going to read  13 it to you, but to ask you to note that they bring the  14 Trade and Intercourse Act provisions in its roots to  15 the Royal Proclamation, and they -- the court spells  16 out what they believe the Royal Proclamation  17 protections were intended.  And then if I could ask  18 you to turn to page 618, under "Statutory Language",  19 the court looks at the language of the Trade and  20 Intercourse Act, and I'm beginning with the sentence  21 that says:  22  23 Section 4 of the Act, the original  24 Nonintercourse statute, quoted above, contains  25 no language suggesting any geographical  26 limitation."  27  2 8 And then dropping down:  29  30 "This language makes plain that the statute was  31 intended to proscribe land conveyances to the  32 states, and therefore was not limited to  33 protection of land outside the boundaries of  34 any state."  35  36 And so the language of the Act is looked at.  And if I  37 could ask you to turn to 619, beginning:  38  39 "The contention that the statute as well as all  40 the provisions of the various Acts was meant to  41 apply only to those parts of the original  42 states which were considered to be within  43 Indian country, while plausible, is amply  44 refuted by inspection of the language of other  45 sections of the various Acts and the structure  46 of the Acts as a whole."  47 76?  1 So again applying the normal -- the same normal  2 principles of statutory construction which I asked of  3 your lordships, they take a look at the whole of the  4 Act to see whether or not that interpretation could  5 stand up.  And the court holds at page 621 on this  6 point:  7  8 "Thus, the conclusion to be drawn from the  9 language of the Nonintercourse statute and the  10 various Acts is that the statute was meant to  11 apply to Indian land throughout the United  12 States.  In regulating relations with the  13 Indians, Congress imposed certain restrictions  14 on transactions occurring in Indian country and  15 certain others to those involving Indians  16 situated throughout the United States.  The  17 Nonintercourse statute, containing no language  18 of limitation" --  19  20 Similar to the Royal Proclamation, in our submission:  21  22 "-- must then be read as applying to all Indian  23 lands."  24  25 And I'm not going to ask your lordships to read  26 through with me to the next section, but I say it's  27 all consonant with the same argument which we've been  28 making, and that is that in the absence of express  29 language, reading the section as a whole, taking a  30 look at the purposes for which the section or  31 enactment was made, all those three things in this  32 case led to the conclusion that lands were not to be  33 construed as lands part -- only within Indian country.  34 My lords, I would like to move on to the next  35 point, I'm at page 8 of my speaking notes, and it's a  36 point which I'm going to advise your lordships can be  37 most easily made by reference to the -- a small  38 selection of material which I had set aside to deal  39 with on reply but which I feel I can better deal with  40 at this stage.  And I've asked madam registrar to give  41 to your lordships the Reply Factum, Appendix A, which  42 is where we contain some of the evidence for the  43 Proclamation, and I've handed up to your lordship two  44 volumes which will correspond with the numbers in the  45 Reply Factum.  I'm not going to be referring to much  46 of it, but as a matter of convenience for myself it  47 was assembled in this place and it's easier for me to 769  1 refer to a few of the paragraphs and references in  2 this way.  3 HUTCHEON, J.A.:  You refer to Appendix A?  4 MS. MANDELL:  Yes.  5 HUTCHEON, J.A.:  Yes, I have it.  Right at the back?  6 MS. MANDELL:  Right at the back.  You're also still going to  7 need, my lords, your K volume.  You've been handed up  8 two volumes of authorities which accompany Appendix A.  9 WALLACE, J.A.:  What is that, how are they noted?  10 MS. MANDELL:  My lords, they read Appendix A, volume 1 of 1,  11 volume 2 of 1, they were handed up over the break.  12 HUTCHEON, J.A.:   We should have Appendix K available?  13 MS. MANDELL:  Yes.  If you could also keep out your authorities  14 for Appendix A.  I'm going to continue on that.  15 LAMBERT, J.A.:  We've finished with Appendix K itself?  16 MS. MANDELL:  No.  17 LAMBERT, J.A.:  All right, thank you.  18 MS. MANDELL:  In fact, I'm going to ask you to turn to Appendix  19 K first, my lords, to tab 26.  This is the trial  20 judge's finding, and I wanted to set it up again for  21 your lordships' consideration.  He found at page 228:  22  23 "The territorial reach of the Royal Proclamation  24 was the subject of a great deal of evidence and  25 argument at trial.  There seems to be little  26 doubt that the eastern and western boundaries  27 of the affected lands were the Appalachians and  28 the Mississippi respectively.  I am not  29 concerned with the north-east, that is north  30 and east of Quebec, but there is controversy  31 about the northwest.  In 1763 neither the  32 northern limit or headwaters of the Mississippi  33 nor the southern boundary of Rupert's Land were  34 known."  35  36 I've already read to you, but I want to bring it back  37 into focus again, the last paragraph:  38  39 "As to lands, I have no doubt the lands of north  40 America north and west of the headwaters of the  41 Mississippi were not lands over which the  42 British Crown had any authority in 1763, except  43 for Rupert's Land, which was not within the  44 reach of the Proclamation."  45  46 And, my lords, we say first of all that we don't  47 believe that extrinsic evidence is necessary for your 770  1 lordships' consideration.  I believe and I've pleaded  2 my argument essentially on the facts that the  3 Proclamation is an instrument, it speaks for itself,  4 you can apply normal rules of interpretation, and we  5 shouldn't have to look to extrinsic evidence to see  6 whether or not there is a western boundary to it, and  7 that's our first and our main argument.  But we say  8 that if you do look to extrinsic evidence, if you feel  9 that must be done, that our submission is that the  10 western boundary was deliberately left open-ended by  11 Britain, and this was in order to accommodate the  12 English designs of western expansion and to preclude  13 the French claims in the far west.  14 We say by 1763 both Britain and France knew that  15 the Canadian northwest extended to the Pacific Ocean,  16 and both nations had claimed sovereignty over this  17 area.  French explorers and fur traders have probably  18 reached the Rocky Mountains by overland routes.  Most  19 of the valuable French trading posts were located in  20 the west and northwest.  By the Treaty of Paris the  21 British gained all the French possessions and claims  22 to North America.  Britain intended the Royal  23 Proclamation to consolidate an effective regime to  24 enable colonization and to achieve the benefits of the  25 fur trade to the furthest reaches possible in North  26 America.  Britain also wished to gain effective  27 possession over the continent to avoid further  28 conflicts with the French over its control.  And we  29 say that a western boundary to the Proclamation would  30 be self-defeating.  31 And, my lords, I would like to take you to some of  32 the references in respect of these propositions  33 asserted.  And if I could first ask you in tab 26 to  34 turn behind the pink slip, I've included a chapter out  35 of Dr. Slattery's Ph.D. thesis, which, my lords, is in  36 the law library here in this building and also at  37 U.B.C.  And he -- this is -- Mr. Justice Taggart, this  38 is really in response to the questions you've been  39 asking.  The first question is how do you determine  40 whether a territory has been acquired.  And he begins  41 the section by saying:  42  43 "What standards does a municipal court apply in  44 ascertaining whether, and at what date, the  45 Crown had acquired title to a territory?  The  46 key to the matter can be stated simply.  In  47 British law, the dominions of the Crown 771  1 comprise all those territories, and no more,  2 which are authoritatively claimed by the  3 Sovereign at a given time.  Once the Crown has  4 asserted sovereignty over the area or performed  5 acts which presuppose its dominion that  6 territory is British for municipal purposes.  7 The question of whether international legal  8 criteria had been satisfied would not normally  9 arise at the domestic level, and in any case  10 would not entitle a municipal court to decline  11 to give effect to authoritative Crown claim."  12  13 And I will ask your lordships, in your own time, to  14 finish reading the chapter.  It's a short chapter and  15 it really, in my submission, brings together all the  16 law that I've been able to find on this point and does  17 it in a very clear way.  And if your lordships will  18 pass Dr. Slattery into the next -- past the pink slip,  19 you will see that Mr. Justice Norris in White and Bob  20 actually applied the principles which are being as  21 described by Dr. Slattery.  And I'm beginning with the  22 page 639:  23  24 "The Proclamation is to be construed in  25 accordance with the common understanding of the  26 British expansionists of those days, who  27 claimed the extension of dominion not in the  28 terms of precise definition or of survey or of  29 British settlement.  In considering the  30 applicability to Vancouver Island, we are not  31 concerned with the validity of such claim, but  32 merely that the territory was claimed and that  33 in its very terms the Proclamation covered all  34 this territory."  35  36 And if your lordships will turn over the page, this is  37 not found in any one part of his judgment, it repeats  38 throughout at the first paragraph after "God Save The  39 King":  40  41 "If the conception of the British claim and the  42 continual extension of exploration be kept in  43 mind, the use of the present tense in the  44 expression 'with whom We are connected, and who  45 live under our Protection' is easily understood  46 as referring to all the Indians on all  47 territory claimed.  The use of the term 'for 772  1 the present' presages the anticipated  2 extension."  3  4 And then at page 644:  5  6 "The facts of actual surveys or settlements on  7 the west coast are not of importance.  The  8 Proclamation was made on the basis of a claim  9 to dominion and its protective provisions  10 became applicable in fact to Indians as their  11 lands (the Indian Territory) came under the de  12 facto dominion of representatives of the  13 British Crown."  14  15 And it is that principle, my lords, that we say is the  16 guiding principle in your lordships' view as to  17 whether or not the drafters of the Proclamation, in  18 light of that principle, would include a western  19 boundary.  The question is really did they intend to  20 preclude one, that's in our submission the question,  21 and in our submission there was no intention to  22 preclude expansion over the claimed area.  It was  23 always intended, in our submission, that the west be  24 left open-ended.  25 And if I could ask your lordships to, in your  2 6 reply -- I'm going to now move into volumes A and B  27 and into the reply material.  28 I would like to begin by taking your lordships to  29 tab -- this is in -- this will be in your Appendix A,  30 and I'm going to for the most part refer you to very  31 selected paragraphs within this material.  My lords,  32 at paragraph 4 I'm talking about the Treaty of Paris,  33 and again, Mr. Justice Taggart, this is in response to  34 your question.  This is what the -- don't forget that  35 the French and the English have been fighting over  36 this country for years, and when Mr. -- when the Chief  37 Justice in the history referred to this dispute, and  38 I'm going to come back to it, it's been quite clear  39 that between the Treaty of Utrecht and the Treaty of  40 Paris the British thought they had settled it.  They  41 had gained certain territory and the French came in  42 and encroached, and there was another round of  43 fighting.  So when the Treaty of Paris was signed the  44 intention for the British was to get it in clear and  45 blanket terms once and for all that everything in the  46 west was going to be ceded by France, not just all of  47 of their territories but all of their claims:  French 773  1 protections, French claims, French dominions, French  2 forts, everything was going to come under the British  3 by way of a treaty, and this is what the Treaty of  4 Paris stated, Article IV provided that:  5  6 "His most Christian Majesty cedes and guarantees  7 to his said Britannick Majesty, in full right,  8 Canada, with all its dependencies" --  9  10 And I have to advise your lordships, although I won't  11 take you to it, there was a fight over getting that  12 word in, "with all its dependencies", it was meant to  13 be as inclusive as possible:  14  15 "-- as well as the island of Cape Breton, and  16 all the other islands and coasts in the gulph  17 and river of St. Lawrence, and in general,  18 everything that depends on the said countries,  19 lands, islands and coast, with the sovereignty,  20 property, possessions and all rights acquired  21 by treaty, or otherwise, which the Most  22 Christian King and the Crown of France have had  23 till now over the said countries, lands,  24 islands, places, coasts, and their inhabitants,  25 so that the Most Christian King cedes and makes  26 over the whole to the said King, and to the  27 Crown of Great Britain, and in the most ample  28 manner and form, without restriction, and  29 without any liberty to depart from the said  30 cession and guaranty under any pretence, or to  31 disturb Great Britain in the possessions above  32 mentioned."  33  34 You can see these men have had a lot of experience in  35 drafting quick claims.  It is a very broad  36 it-all-includes-everything language, which was what  37 the Treaty of Paris was intending to do.  38 I say to you, my lords, that the first thing we  39 say is that when France ceded to Britain the  40 territories, the intention was to cede the whole  41 thing.  And I say to you as well, and I've submitted,  42 that both Britain and France at that time knew that  43 there was a Pacific Ocean.  I'm not saying they had  44 charted it, I'm not saying they knew how detailed it  45 was, but the territory they both had addressed their  46 minds to, that they both knew what they were talking  47 about, included right out to the ocean.  And I would 774  1 like to turn your lordships to tab 27 of the materials  2 that I've handed up to you.  3 TAGGART, J.A.:  Tab 27 of R-40?  4 MS. MANDELL:  This would be of the two volumes, this is volume A  5 of the two volumes of materials that I handed up to  6 you come with the appendix.  7 HUTCHEON, J.A.:  Volume 1?  8 MS. MANDELL:  Yes.  9 HUTCHEON, J.A.:  Is that the word Canada?  10 MS. MANDELL:  Yeah.  That's what the French called — that's  11 what they called their territory, yep.  12 HUTCHEON, J.A.:  Canada.  13 MS. MANDELL:  My lords, this is tab 40 — sorry, at tab 27, what  14 I'm reading to you from is the description by Nicholas  15 Bellin, he was a French map maker, and he mapped  16 around -- I'm going to turn you to a 1755 map that he  17 did, and this description of what was known in North  18 America was accompanying -- was the text or the -- his  19 own description of what ultimately was recorded on a  20 map.  And if I could take you to the paragraph at the  21 beginning of -- sorry, it's about five paragraphs into  22 the extract under Bellin's description of the country  23 before 1755:  24  25 "We have long been aware of the existence of an  26 extensive chain of lakes and river connections  27 to the west and north-west of Lake Superior,  28 forming a convenient highway to the far West;  29 it was even supposed the ocean might be reached  30 in that direction; hence the later discoveries  31 of the French in those parts have only  32 confirmed our previous conjectures and almost  33 converted them into certainty."  34  35 And I've got in the next tab, you will see it's put in  36 tab 29, my lord, there's a map, and it's the Bellin  37 map of 1755.  This is what the French thought was  38 there, and it comes in two parts.  You will have to  39 assemble it.  I make a simple point with it, my lords.  40 The colour coding was put on and certified by the  41 artist to be accurate, and you will see on the map  42 that the yellow is considered -- was considered at  43 that time to be primarily where the English were,  44 French possessions are coloured blue, and those of the  45 Spanish are coloured red.  Now, my lords, you will see  46 that for the most part, I'm just going to hold up one  47 side of the map, that the French were trading at that 775  1 point in this area here, which is -- which was known  2 as La Mer De L'Ouest, and I will lead you into that  3 discussion in a minute.  And their possessions are  4 portrayed as open-ended to the west.  They were  5 primarily at a location which is -- I don't know if  6 it's possible for your lordships to see it this way,  7 but -- my lords, this was just west of Lake Winnipeg,  8 that's primarily where they were.  You can see that  9 the English were primarily around Hudson's Bay and  10 around the eastern seaboard.  And as I mentioned, the  11 French extended to about the limit of the west.  My  12 lords, I'm not going to ask you, it's very difficult  13 to read this map, but I would like you in your own  14 time to look for the Mississippi.  It's not in the  15 right place, but it is considerably east of Le Mer De  16 L'Ouest, it's somewhere in this region here, when you  17 do get around to looking for it.  So from the French  18 perspective from Bellin's map, the French were  19 primarily trading in an area northwest and north of  20 the Mississippi and west of the Mississipi around  21 1755.  This is -- this is not 1763, this is much  22 earlier than that, and the French traders are pushing  23 out constantly to try and move their trade further  24 west.  They're looking for a route to the sea.  25 Now, the question is what did the British think  26 that they were getting.  And if I could ask your  27 lordships to turn to tab 44, it's found in your second  28 volume.  This is one of the letters which was part of  29 the material immediately before the signing of the  30 Proclamation.  This is a letter from the Lords of  31 Trade to Egremont on June 8th.  It's all still to do  32 with the drafting language.  And your lordships will  33 see on page 99 of the letter, which is the third page  34 down into the letter --  35 TAGGART, J.A.:  Where are we now?  36 MS. MANDELL:  You're in volume 2, tab 44, page 99.  This is a  37 letter which is being sent -- it's an enclosure in a  38 letter from the Lords of Trade to Egremont, and it's  39 addressed to the King, and you will see at the bottom,  40 the next obvious benefit, they're talking about  41 consolidating the Treaty of Paris acquisitions.  My  42 lords, do you all have it?  It's at page 99 of the  43 letter.  44 WALLACE, J.A.:  I appreciate that, but I wonder where it is in  45 your minutes or notes of argument.  46 MS. MANDELL:  My speaking notes.  My lord, I'm proving the point  47 which is at page 9.  I'm leading you to some of the 776  1 evidence in support.  2 WALLACE, J.A.:  But these references aren't set out there, and  3 this is part of it.  4 MS. MANDELL:  No, they're not.  5 WALLACE, J.A.:  This is volume 2, tab —  6 MS. MANDELL:  44.  7 WALLACE, J.A.:  Tab 44.  8 MS. MANDELL:  Yes.  9  10 "The next Obvious benefit acquired by the  11 Cessions made to Your Majesty is the fur and  12 skin trade."  13  14 And I'm directing you to this language, "of all the  15 Indians in North America".  This isn't just the  16 several nations and tribes, they're saying all the  17 Indians in North America.  18 TAGGART, J.A.:  Whereabouts on the page approximately?  19 MS. MANDELL:  Sorry, right at the very bottom, my lord, and I'm  20 turning over to the page to 100 now.  21 TAGGART, J.A.:  Okay.  22 MS. MANDELL:  23 "The first of these articles before the present  24 Cession, was enjoyed by the French almost  25 entirely."  26  27 And, my lords, I'm going to ask you in your own time  28 to read from there down to the sentence that begins  29 "But this trade with the French with the utmost  30 industry".  What they're talking about is the point I  31 mentioned to you earlier that the French and the  32 English have been fighting about lands which the  33 French thought they had and the English -- or the  34 English thought they had and the French came around  35 the back and regained fur trading benefits.  And there  36 was a complaint about this, but the English, in the  37 Lords of Trade letters, say:  38  39 "But this trade with the French with the utmost  40 Industry is carried to the greatest extent, by  41 means of numerous well chosen Posts and Forts  42 sufficient as well as to overawe as supply all  43 the Indians upon that immense Continent, is now  44 fallen entirely and exclusively into the Hands  45 of Your Majesty's subjects and May secured and  46 communicated it to all Your Majesty's Colonies  47 according to the Industry of each, by means of 777  1 those Posts and Forts with proper regulation  2 for trade with the Indians, under the  3 Protection of such a military force as may  4 preserve their tranquility, not only against  5 the Indian" --  6  7 I can't read it:  8  9 "-- but be ready for their defence against any  10 European attack.  11  12 And if you can drop down to the next full sentence:  13  14 "Another obvious advantage of the Cession, will  15 be the supply of Indian Tribes upon the  16 Continent of North America with European  17 commodities immediately through the hands of  18 Indian traders."  19  20 HUTCHEON, J.A.:  English.  21 MS. MANDELL:  "English traders".  So the language which is going  22 on is that you are now to supply all the Indians upon  23 that immense continent, upon the continent of North  24 America, all the Indians of North America.  It's a  25 very all-encompassing view that the Lords of Trade  26 believed they had received from the Treaty of Paris.  27 And, my lords, if I could finally just turn you to  28 what the British understood about the continent  29 themselves at that time, first if I could turn you to  30 tab 63.  This is the same kind of description of a map  31 which was in 1762 spelled out by Jefferys, who was the  32 King's map maker, and he says at the second-to-last  33 paragraph from the bottom:  34  35 "Canada, according to the English account, is  36 bounded on the north by the high lands which  37 separate it from the country about Hudson's  38 Bay, Labrador or New Britain, and the country  39 of the Eskimeaux and the Christeneaux; on the  40 east of the River St. Lawrence; and on the  41 south by the Outawais River; the country of the  42 six nations and Louisiana, its limits towards  43 the west extending over countries and nations  44 hitherto undiscovered."  45  46 That's what the British in 18 -- sorry, in 1762  47 believed that they had.  And if I could ask your 77?  1 lordships to go back to tab 60, it's -- there's --  2 this is the Jefferys map of 1762.  Again, as I  3 mentioned to you, he's an official map maker for the  4 King, and I only make one point with it, my lords, and  5 that is to show that, according to their knowledge at  6 the time, there was definitely a coast and there was  7 definitely the Pacific Ocean.  They weren't, the  8 British, all that knowledgeable about what was in  9 between where the west coast were and the ocean, they  10 hadn't explored that country well, but the map maker  11 to the King in 1762 was putting a map together which  12 included the Pacific Ocean and had marked the known  13 Spanish exploration up to this point and the known  14 Russian exploration up to this point.  And you've got,  15 I'm not saying a great coast, but it's not bad for  16 people that were in the business of map making in that  17 early date.  And so what I say, my lords, is this:  18 And that is that both the British and the French knew  19 that there was a continent out there which went out to  20 the Pacific Ocean, and that Britain thought she had  21 got, France thought she had ceded the whole of the  22 interest in the whole of the continent, and it would  23 be counter-productive to the British in light of the  24 June 8th letter and her designs to colonize and take  25 benefit of the fur trade, to put a western boundary in  26 the Proclamation, which would preclude her from going  27 out and realizing the full extent of her colonization  28 ambitions.  29 I have to stop.  30 TAGGART, J.A.:  If you have an opportunity to go to New Orleans  31 sometime -- New Orleans, I should say, sometime and  32 take one of the bus tours of the city, they would  33 proudly present you with a map of the Louisiana  34 Purchase, and to my astonishment the Louisiana  35 Purchase, which was effected by the Americans from the  36 French I believe in the early 1800s, went well north  37 of the 49th Parallel to the north of Lake Superior and  38 included all of a good -- you could interpret it as  39 going half-way to James Bay.  So the French must have  40 sold it twice, once to the Brits and once to the  41 Yanks.  42 MS. MANDELL:  Maybe that is American expansionism that your  43 lordship stumbled upon on the bus.  My lords, I am  44 behind at least half an hour, and I was wondering if  45 it's possible to start early tomorrow?  46 TAGGART, J.A.:  No.  We're not going to budge on our standard  47 sitting time, there's no point.  By this time of day 779  1 we're getting more than plenty.  2 MS. MANDELL:  I'll do my best.  3 TAGGART, J.A.:  Ten o'clock.  4 THE REGISTRAR:  Order in court.  5  6 (PROCEEDINGS ADJOURNED)  7  8 I hereby certify the foregoing to be  9 a true and accurate transcript of the  10 proceedings herein transcribed to the  11 best of my skill and ability  12  13  14  15  16 Graham D. Parker  17 Official Reporter  18 United Reporting Service Ltd.  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-


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