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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-10-24] British Columbia. Supreme Court Oct 24, 1989

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 21482  D.R. Williams (for Province)  Re-in chief by Mr. Goldie  1 VANCOUVER, B.C.  2 October 24, 1989  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 24th day of October, 1989.  In the  6 matter of Delgamuukw versus Her Majesty the Queen at  7 bar, my lord.  May I remind you, sir, you're still  8 under oath?  9 A   Yes.  10 THE REGISTRAR:  Would you state your name for the record,  11 please?  12 A   David Ricardo Williams.  13 THE REGISTRAR:  Thank you.  14 MR. ADAMS:  My lord, just before my friend begins, Mr. Rush has  15 asked me to hand you, and I have distributed to my  16 friends, a revised index to the cross-examination of  17 Dr. Greenwood, Exhibit 1168.  18 THE COURT:  Oh, thank you.  19 MR. ADAMS:  And while I'm on my feet, my lord, what has turned  20 into two volumes of Exhibit 1172, the  21 cross-examination binder for Mr. Williams, I will be  22 providing an updated index for that as soon as I can  23 get the volumes back and get it prepared.  And so 1172  24 volume 1 will be tabs 1 to 19, 1172 volume 2 will be  25 tabs 20 to 29.  2 6 THE COURT:  Thank you.  Mr. Goldie.  27 MR. GOLDIE:  Thank you, my lord.  I have distributed, my lord,  28 copies of Professor Farr's article in the University  29 of British Columbia Law Review, for which a number,  30 Exhibit 1181, was reserved.  And I tender that  31 publication with Professor Farr's article in it as an  32 exhibit.  33 THE COURT:  Thank you.  34  35 (EXHIBIT 1181 - U.B.C. Law Review - Organization  36 of the judicial system)  37  38 MR. GOLDIE:  My lord, yesterday at the adjournment I was -- had  39 asked Mr. Williams to look at a couple of Orders in  40 Council.  I'm not going to pursue that, I'm going to  41 file them otherwise.  42 THE COURT:  I'm sorry, you're going to file them?  43 MR. GOLDIE:  I'm going to file them, but they're in a collection  44 of documents which I will be tendering.  45 THE COURT:  All right, thank you.  46 MR. GOLDIE:  47 Q   Mr. Williams, you will recall that Mr. Adams included 21483  D.R. Williams (for Province)  Re-in chief by Mr. Goldie  1 under tab 13 of volume 1 of Exhibit 1172 some extracts  2 from your book, "Simon Peter Gunanoot, The Trapline  3 Outlaw".  Perhaps you might have that before you?  4 A   Yes.  5 Q   On -- and on a number of occasions he referred you to  6 page 14 with respect to the statements made there  7 about crests?  8 A   Yes.  9 Q   Family groupings, hunting and trapping grounds.  Can  10 you tell his lordship what the source was for your  11 information there?  12 A   Frankly, I cannot recall precisely.  Partly I think it  13 was based on interviews with members of the family,  14 but -- and partly on reading, but I'm unable to assign  15 a specific source at this time, I'm afraid.  16 Q   You were, however -- you did, however, obtain  17 information from interviews?  18 A   Oh, yes.  19 Q   Yes, all right, thank you.  And you were read a  20 portion of tab 285 of volume 5 of Mr. Galois'  21 collection of documents.  And I think like the rest of  22 us you found that largely illegible, just to refresh  23 your recollection in that regard.  My lord, yesterday  24 I asked that there be enclosed with my friend's  25 cross-examination book volume 2 under tab 26 a clearer  26 print of the same letter.  Perhaps you would satisfy  27 yourself as best you can, Mr. Williams, if that is in  28 fact the same letter?  29 A   Yes.  It is the same, at least appears to me to be the  3 0 s ame.  31 Q   Yes.  And would you provide his lordship with the  32 context of the part that my friend asked you -- or  33 read to you, would you refer to page 2, please.  Well,  34 first I should ask you to read the entire letter and  35 then I'm going to refer you to page 2.  36 A   Yes.  37 Q   Now, you were asked to have regard to the paragraph  38 that began with the words on page 2:  39  40 "All the instructions the Indians here received are  41 cunningly guarded with great secrecy."  42  43 A   Yes.  44 Q   From the balance of that letter can you tell his  45 lordship from what source these instructions came?  46 A  According to Loring they were from the Tsimpsians.  47 Q   And does he go on to give any further comment with 21484  D.R. Williams (for Province)  Re-in chief by Mr. Goldie  1 respect to that?  2 A   He says on the second page:  3  4 "In so far as can be discerned, the people of  5 here are being dictated to by the latter" --  6  7 That is the Tsimpsians:  8  9 "to what course to pursue in regard thereof, and  10 enjoined to conform their demands with those of  11 the Tsimpsians."  12  13 Q   All right, thank you.  You were questioned on a number  14 of occasions with respect to the political protests  15 and the land claims -- land claims petitions, and as I  16 say, you referred to that on a number of occasions?  17 A   Yes.  18 Q   Did any of those, before or after the incident in  19 1909, when the government road building equipment was  20 seized near Kispiox, involve threats to life or the  21 seizure of property, so far as your recollection now  22 goes?  23 A  Apart from the 1909?  24 Q   Yes.  Apart from 1909?  25 A   Yes.  In subsequent events that I was referred to, no,  26 the answer is no.  27 MR. GOLDIE:  Thank you.  I have no further questions, my lord.  2 8 THE COURT:  All right.  Thank you, Mr. Williams.  29 MR. GOLDIE:  May the witness be excused, my lord?  30 THE COURT:  Yes, you may be excused.  31 A   Thank you, my lord.  32 MR. GOLDIE:  Thank you.  My lord, I wish to complete my  33 references to Exhibit 1142, which consists of "Papers  34 Relative to the Affairs of British Columbia" and a  35 dispatch from London dated the 1st of February, 1858  36 under tab 5, and an extract from the case on appeal in  37 the Calder case under tab 6.  Before I do so, my lord,  38 I should say a word about scheduling and the sequence  39 in which I propose dealing with these matters.  While  40 I had never intended to deal with other documents to  41 the extent I have dealt with this one, because in my  42 submission it provides the setting in which all of  43 these events must be judged --  44 THE COURT:  I'm sorry.  Now, when you say "this one", you're  45 talking about --  46 MR. GOLDIE:  Exhibit 1142.  47 THE COURT:  That is the several documents in that collection. 21485  Discussion on scheduling  Re-in chief by Mr. Goldie  GOLDIE:  Yes.  Primarily the documents which were laid  before parliament.  COURT:  Yes.  GOLDIE:  While I -- as I say, I intended to fairly  drastically shorten the document filing process.  It  is unlikely that I will be finished today, and it is  very important, my lord, for Dr. Robinson's evidence  to start tomorrow and to be concluded this week, if  it's at all possible.  So -- and we have as well a  number of loose ends to do before we can consider the  Province's case closed.  And I will be proposing as a  scheduling, and I'm just setting this out now so that  my friends may consider it, that Dr. Robinson's  evidence be completed this week, that the loose ends,  which include a number of matters that have been  referred to from time to time and which will take not  less than a day, be dealt with either at the end of  next week, recognizing that your lordship is sitting  in the Court of Appeal next week, or on the Monday or  Tuesday before Canada's case begins on November the  8th.  That we think will be necessary to enable these  things to be done.  I am -- I'm in the Supreme Court  of Canada on a very short hearing on November the 6th,  and I have engagements elsewhere on November the 1st,  but these matters will be -- other counsel will deal  with these matters if we can use any of those days.  COURT:  Well, I have a full week in the Court of Appeal next  week.  GOLDIE:  I see.  COURT:  But we are not scheduled for the 6th and 7th.  GOLDIE:  That's correct, the situation being that Canada is  starting on the 8th and Mr. Macaulay being in the  Pasco appeal on I think it's the 7th.  COURT:  I did not understand Mr. Macaulay to be saying with  any degree of certainty that he would need three days,  8, 9, and 10.  I'm not sure if I'm right in that.  GOLDIE:  I understood —  RUSSELL:  I'm sorry, my lord.  He would need the three days:  8th, 9th and 10th.  COURT:  Yes.  RUSSELL:  I think we plan to use those.  COURT:  You do, all right.  Can the things you say need to  be done be done on the 6th and 7th, Mr. Goldie?  GOLDIE:  I would ask that your lordship reserve those days,  well, subject to my friend's comments.  COURT:  Yes.  That's the first they know of that, is it?  GOLDIE:  That's correct.  Events have occurred since  1  MR.  2  3  THE  4  MR.  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  THE  28  29  MR.  30  THE  31  MR.  32  33  34  THE  35  36  37  MR.  38  MS.  39  40  THE  41  MS.  42  THE  43  44  MR.  45  46  THE  47  MR. 21486  Discussion on scheduling  Re-in chief by Mr. Goldie  yesterday which have precipitated my -- the fact that  I'm raising this matter now.  COURT:  Yes.  Well, I'll leave it with counsel.  I'm  available on the 6th and 7th.  GUENTHER:  My lord, if I can assist and if it please the  court, I'm sitting in for the Plaintiffs today, but  Mr. Grant had planned to be available the 6th and 7th  on the chance that Dr. Robinson will go into those  days, although I'm not saying that's likely, but he  would be.  Mr. Rush may be available on the 7th if  there's a problem on that date.  If my friend, Mr.  Goldie, in fact seems to be pointed at the 7th with  this thing, I think probably that that would be a  convenient time.  COURT:  Yes.  You're preferring the 7th over the 6th, are  you, Mr. Goldie?  GOLDIE:  I think we're going to need both days, my lord, and  that's on the assumption that Dr. Robinson is  completed on the Saturday.  COURT:  Yes.  GUENTHER:  Just for clarification, is Mr. Goldie saying one  of those days is for the balance of reading of  documents?  GOLDIE:  That may turn out to be the problem.  I'm not  saying these are in water-tight compartments, I'm  saying the loose ends, as far as we perceive them now,  will take at least a day, and that the balance of the  documents I may -- because Dr. Robinson we're going to  start tomorrow, come what may, we'll take that up.  COURT:  Yes, all right.  Am I right in believing that we're  not sitting the week of the 14th?  GOLDIE:  That's correct, my lord.  I think that was a week  off, and that I think it was at Mr. Grant's request  that that week off be observed.  COURT:  Yes, all right.  Well, I will leave with counsel --  I'm not available next week, I am available the 6th  and 7th, and I am assuming, as has been suggested, not  be cleaned up, we'll probably be sitting Saturday of  this week.  GOLDIE:  Well, we may be urging that, my lord, because if  Dr. Robinson goes over into the following week the  whole thing is upset again.  COURT:  Yes, all right.  GOLDIE:  I should give my friends some indication of the  sequence in which I propose dealing with the assembly  of documents that I will be filing.  After Exhibit  1142 I propose dealing with a document entitled  1  2  3  THE  4  5  MR.  6  7  8  9  10  11  12  13  14  15  THE  16  17  MR.  18  19  20  THE  21  MR.  22  23  24  MR.  25  26  27  28  29  30  THE  31  32  MR.  33  34  35  THE  36  37  38  39  40  MR.  41  42  43  THE  44  MR.  45  46  47 21487  Documents read in  by Mr. Goldie  1 "Indian Land Question, 1850-1875, 1877", commonly  2 known as "Papers Connected With The Indian Land  3 Question of British Columbia".  4 THE COURT:  What was the date, 1850 to —  5 MR. GOLDIE:  1875.  And then there is in the document one that  6 is dated 1877.  I'll next deal with the Report of the  7 Select Committee of the House of Commons On Matters  8 Relating to the Hudson's Bay Company".  This is of  9 1857.  I'll then deal with a binder of documents  10 entitled "Colonial Documents General".  And then there  11 are three binders of documents relating to what I call  12 "The Calder 13".  Your lordship may recall that in the  13 Calder case some 13 ordinances were relied upon by the  14 Province as demonstrating extinguishment of title, and  15 I will be filing those 13 with the underlying  16 despatches between the governor and the Colonial  17 office, and at the Colonial office and sometimes with  18 the Immigration Board of the United Kingdom.  The next  19 selection will be three volumes of selected Colonial  20 Proclamations.  These exclude, of course, the Calder  21 13, but they deal in the same detail as I deal with  22 the Calder 13.  That is to say, they include the  23 underlying despatches and the Attorney-General's  24 report with respect to the legislation when available.  25 The next volume will be entitled "Miscellaneous  26 Statutory Instruments", the next volume of documents  27 will be entitled "Terms of Union, then the next  28 collection of documents will be -- deal with the  29 counter-claim and defence, some 13 volumes, and the  30 last will be "Provincial General".  Now, my lord, all  31 of those, with the exception of the last, have been  32 distributed to my friends, but -- and this is just the  33 sequence in which I propose dealing with them.  34 THE COURT:  Thank you.  35 MR. GOLDIE:  Now, with that I would like to turn to Exhibit  36 1142.  And I was just about to deal with tab 4, and  37 before I do so I wish to ask your lordship to note  38 under tab 2, the second to last page is a map of  39 British Columbia, and it is of course a Xerox  40 reproduction of an original -- the reproduction is  41 really so unsatisfactory that we have had another copy  42 made, which is a full size, and will provide your  43 lordship with an indication of the -- of the document  44 that was laid before parliament.  And it --  45 THE COURT:  I was looking at the more attractive one of my  46 cottage at Boundary Bay.  47 MR. GOLDIE:  Yes.  It is of more topical interest.  I would ask 214S  Documents read in  by Mr. Goldie  1 your lordship to insert the envelope with the map  2 immediately following the Xerox, so it's available.  3 THE COURT:  Yes, all right.  4 MR. GOLDIE:  Now, turning to tab 4 —  5 THE COURT:  Will you give me just a moment, Mr. Goldie.  All  6 right, thank you.  7 MR. GOLDIE:  Your lordship will see from the first -- or the  8 title page of part 4 is that the documents in this  9 book were presented to both Houses of Parliament in  10 March of 1862.  The Douglas despatches --  11 THE COURT:  That is the Imperial Parliament?  12 MR. GOLDIE:  Yes, that is correct, my lord.  13 THE COURT:  Mm-hmm.  14 MR. GOLDIE:  The Douglas despatches from February 17th, 1860 to  15 November 1861 are included, and the Duke of  16 Newcastle's despatches, he being the Colonial  17 Secretary at the time, extend from May of 1860 to May  18 of 1861.  19 THE COURT:  What year did you say these were presented to the  20 Imperial Parliament, in March of what year, sorry?  21 MR. GOLDIE:  March of 1862, my lord.  Your Lordship may recall  22 that I laid considerable emphasis in the first parts  23 on the gap between the time that the despatch is  24 written and the time it is received and the  25 complication which arose from that.  I'm not going to  26 emphasize that at this time, and I'm going to go  27 through these very quickly.  The first despatch from  28 Douglas to Newcastle deals with grants to clergy for  29 residences and seeks approval of 100-acre grants to  30 the major denominations.  At page 66 your lordship  31 will find the Duke of Newcastle's response to that, in  32 which he approves the grants for residential purposes  33 but is unhappy about the grants for the larger grants.  34 I mention this only because your lordship will find  35 that one of the major controversies in the colonies,  36 known as the Metlakatla incident, arose from a grant  37 of some two acres reserved by the Governor for the  38 Church Missionary Society at Metlakatla.  Then the  39 despatch number 2 on page 2 Douglas refers to -- I  40 shall read paragraph 1:  41  42 "The desire manifested on the part of Her Majesty's  43 Government for the improvement and well-being of  44 the aboriginal races of British Columbia induces  45 me to lay before your Grace the enclosed  46 interesting correspondence between the Reverend  47 Edward Cridge, district minister of Victoria, and 21489  Documents read in  by Mr. Goldie  1 Mr. William Duncan, an exemplary and truly worthy  2 gentleman, who has, some years past, been  3 devotedly labouring with a wonderful degree of  4 energy perseverance as a Christian missionary  5 among the Indian population at and about Fort  6 Simpson."  7  8 And then at paragraph 4, after stating that he  9 proposed to reserve several hundred acres for Duncan,  10 he says in paragraph 5:  11  12 "I would submit, with respect to all land reserved  13 for Indians, the advisability of withholding from  14 them the power to sell or otherwise alienate the  15 title, as they are yet so ignorant and improvident  16 that they cannot safely be trusted with the  17 management or control of landed estate, which,  18 if fully conveyed to them, would soon pass into  19 other hands.  20 I would, therefore, recommend, as a safe and  21 preferable course, that such reserves of land  22 should be conveyed to the Governor of the Colony  23 for the time being in trust for the use and  24 benefit of the Indians, leaving no power whatever  25 in them to sell or alienate the estate."  26  27 And then Mr. Cridge's letter indicates that the idea  28 of a reserve really originated with Douglas.  And the  29 enclosure number 2 is Mr. Duncan's letter to Mr.  30 Cridge, and it will be seen that it was Mr. Duncan's  31 view that he wished to locate away from existing  32 Indian settlements, and this indeed was part of the  33 novelty to his approach.  My lord, page 66 the Duke of  34 Newcastle's response is provided.  Continuing on with  35 Douglas' communications, that of the 23rd of April of  36 1860, is simply the general state of affairs.  Page 6,  37 that of May 23rd, 1860, relates to the effect of the  38 pre-emption law and the interest of Crown in  39 settlement of -- the settlement and its provision of  40 remuneration from settlement.  Number 8 on page --  41 number 5 on page 8, May 31st, 1860, is part of the  42 Governor's progress through the Colony, and on page 9  43 he continues -- he's continuing his progress to the  44 Colony, and page 11, he discusses the meetings he has  45 had with the miners and his request for approval of  46 financing some of the expenditures in the policy.  47 Page 14, his despatch of the 4th of August, 1860, in 21490  Documents read in  by Mr. Goldie  1 which he defends his views on the hundred-acre grants  2 to the clergy, takes issue with the Colonial Secretary  3 on that point.  And he says, and I'll refer only to  4 the one sentence on page 14, and it's the fourth  5 paragraph from the bottom, where he says:  6  7 "The circumstances of British Columbia, as your  8 Grace is aware, are very peculiar; had the Colony  9 been settled by a population drawn from the mother  10 country, holding the same religious views, and  11 appreciating Christian privileges and instruction,  12 there would have been less cause for anxiety about  13 the support of religion."  14  15 Then he goes on to indicate why the situation is such  16 that it is.  Page 15 encloses the New Westminster  17 Municipal Council Act.  Page 20 is despatch of August  18 the 16th of 1860.  It is of interest, my lord, under  19 paragraph 12 he remarks that the collection of miners  20 around Alexandria and Quesnel River has made it  21 necessary to form a police station there.  And page 21  22 is despatch of October the 8th, 1860.  He again  23 reports on a -- or he is continuing his reports, I  24 should say, on progresses through the Colony, this one  25 taking some five weeks, and indicating that he would  26 file a complete report on that.  And on page 22 he  27 does -- he commences that, makes reference on page 24,  28 paragraph 20 "Near the settlement", and this is at  29 Pemberton, he states:  30  31 "is an Indian reserve of several hundred acres  32 of land which is retained for the benefit of and  33 occupied by about 30 native families, who live on  34 the most amicable terms with their white  35 neighbours, and look healthy, clean and altogether  36 in very comfortable circumstances.  They live by  37 fishing, and on the produce of the chase, and of  38 the land, which they cultivate, to some extent,  39 with care and skill."  40  41 And then he deals with other matters, including the  42 assizes which took place at Cayoosh.  This is referred  43 to at paragraph 34.  Cayoosh is in the general  44 vicinity of Lillooet:  45  46 "The assizes were opened by the Judge of British  47 Columbia during my stay at Cayoosh for the trial 21491  Documents read in  by Mr. Goldie  1 of two Indians charged with having murdered two  2 Chinese miners.  The facts were established on the  3 admission of the accused themselves; but it  4 appearing from the evidence that the deceased were  5 the aggressors, and had been slain without malice  6 prepense, in a casual affray, arising out of an  7 indecent assault committed on the wife of one of  8 the Indians, the jury returned a verdict of  9 manslaughter against one of the prisoners, and  10 found the other 'not guilty'."  11  12 And he stated in paragraph 35:  13  14 "I had an opportunity of communicating personally  15 with the native Indian tribes, who assembled in  16 grade numbers at Cayoosh during my stay.  I made  17 them clearly understand that Her Majesty's  18 Government felt deeply interested in their  19 welfare" —  20  21 Of the Indian Tribes:  22  23 "and had sent instructions that they should be  24 treated in all respects as Her Majesty's other  25 subjects; and that the local magistrates would  26 attend to their complaints, and guard them from  27 wrong, provided they abandoned their own barbarous  28 modes of retaliation and appealed in all cases to  29 the laws for relief and protection.  I also  30 forcibly impressed upon their minds that the same  31 laws would not fail to punish offences committed  32 by them against the persons or property of others.  33 I also explained to them that the magistrates had  34 instructions to stake out, and reserve for their  35 use and benefit, all their occupied village  36 sites and cultivated fields and as much land in  37 the vicinity of each as they could till, or was  38 required for their support; and that they might  39 freely exercise and enjoy the rights of fishing  40 the lakes and rivers, and of hunting over all  41 unoccupied Crown lands in the Colony; and that on  42 their becoming registered free miners they might  43 dig and search for gold, and hold mining claims on  44 the same terms precisely as other miners:  In  45 short, I strove to make them conscious that they  46 were recognized members of the commonwealth, and  47 that by good conduct they would acquire a certain 21492  Documents read in  by Mr. Goldie  1 status and become respectable members of society.  2 They were delighted with the idea, and expressed  3 their gratituded in the warmest terms, assuring me  4 of their boundless devotion and attachment to Her  5 Majesty's person and crown, and their readiness to  6 take up arms at any moment in defence of Her  7 Majesty's dominion and rights."  8  9 And then at page 38 he remarks that:  10  11 "The mining bars were, with few exceptions,  12 deserted, or occupied by Chinese and Indians, who  13 appear to form the great body of miners on this  14 part of the river."  15  16 And then he proceeds to Lytton, and in paragraph 44 he  17 states:  18  19 "The Indians mustered in great force during my stay  2 0 at Lytton.  My communications with them were to  21 the same effect as to the native tribes who  22 assembled at Cayoosh, and their gratitude,  23 loyalty, and devotion were expressed in terms  24 equally warm and earnest."  25  26 And then there is the Address of the Grand Jury to  27 which he made reference is set out on page 27.  And  28 then on his next despatch of October 25th, 1860, he  29 leaves Lytton and goes toward Shimilkomeen and Rock  30 Creek, the latter being 228 miles from Lytton.  So  31 your lordship will see that he is going in a  32 south-easterly direction across the province, a part  33 that one thinks of Lytton and Shimilkomeen and Rock  34 Creek, he's going through a part of the province that  35 is not the easiest part to traverse.  He said in  36 paragraph 3:  37  38 "With the exception of the miners assembled on  39 Thompson River at Rock Creek and Shimilkomeen,  40 the part of British Columbia through which my  41 route lay, is still exclusively occupied by the  42 native Indian tribes, a race of bold and  43 active hunters, forming, when mustered in force on  44 their hardy native horses, an imposing array.  I  45 fell in with detachments at different points  46 of the route, where they had assembled to offer a  47 rude but cordial welcome." 21493  Documents read in  by Mr. Goldie  1 In paragraph 4 he speaks of how he dealt with them,  2 and then in paragraph 5 he says this:  3  4 "There was one subject which especially  5 pre-occupied their minds, as I discovered by the  6 frequent allusions they made to it, namely, the  7 abject condition to which the cognate native  8 tribes of Oregon have been reduced by the  9 American system of removing whole tribes from  10 their native homes into distant reserves, where  11 they are compelled to stay, and denied the  12 enjoyment of that natural freedom and liberty of  13 action without which existence becomes  14 intolerable.  They evidently looked forward with  15 dread to their own future condition, fearing lest  16 the same wretched fate awaited the natives  17 of British Columbia.  18 I succeeded in disabusing their minds of these  19 false impressions by fully explaining the views of  20 Her Majesty's Government, and repeating in  21 substance what I have in a former part of this  22 report informed your Grace was said on the same  23 subject to the assembled tribes at Cayoosh and  24 Lytton.  25 Those communications, the effect of reassuring  26 their minds and eliciting assurances of their  27 fidelity and attachment.  An appalling Indian  28 outrage committed in the neighbouring State  29 of Oregon, as related with its attendant horrors  30 in a slip enclosed herewith from the "Vancouver  31 Chronicle" will show better than comment the  32 impolicy of the American system, and how careful  33 we should be in guarding against the contagion of  34 evil example, by treating the natives with  35 justice, and removing when necessary, every cause  36 of distrust as to the ultimate views and policy  37 of Her Majesty's Government with respect to them."  38  39 Now, the slip to which the Governor referred is at  40 page 31, my lord.  It's headed "Massacre of an  41 Immigrant Train by the Snake Indians-45 Persons  42 Butchered".  It's dated Yreka, October 9th, 1860, but  43 the byline is Vancouver, October 3rd, 9:00 p.m.  Now,  44 this of course is Vancouver, Washington, and it is of  45 an attack which lasted some days on a train of  46 settlers in the adjacent territory.  Then he proceeds  47 across the Colony meeting miners from time to time, 21494  Documents read in  by Mr. Goldie  1 and he refers in paragraph 19:  2  3 "I met the assembled population of the place the  4 day after my arrival, and addressed them on  5 various subjects."  6  7 And he then states the nature of his address.  And the  8 next one, my lord, is -- if you go to page 40, this is  9 despatch of November 18th, 1860 and enclosing the  10 report of Mr. Nind, who had been appointed Stipendiary  11 Magistrate.  I shouldn't say "enclosing report",  12 making reference to that.  Then his of the January  13 26th, 1861, making reference to the finances of the  14 province.  49 is his of the May 2nd, 1861, making  15 reference to the discoveries which ultimately would be  16 the Caribou, and remarking in paragraph 6 on the  17 tranquility of the country.  And there is an enclosure  18 there of Mr. Nind's starting at page 50.  19 THE COURT:  Does it start at the bottom of 49?  20 MR. GOLDIE:  Yes, I think it does, I think, my lord.  21 THE COURT:  No.  22 MR. GOLDIE:  No.  That's Cox from Rock Creek.  Nind is from  23 Williams Lake, beginning at page 50.  Page 52 is his  24 despatch of June the 4th of 1861.  Paragraph 4 he  25 states:  26  27 "Many land claims have been taken by settlers  28 along the Fraser, yet in my progress from New  29 Westminster to Hope there was scarcely a trace of  30 improvement or any observable inroad on the  31 forest.  The pre-emption act is, however,  32 beginning to work its effect, and will, as I  33 confidently believe, ere long make a decided  34 change on the face of the country."  35  36 On page 54, that of July the 16th, this too relates to  37 his progress  and is dealing with matters beyond.  His  38 of September 11th, 1861 reports on the Colony's  39 accounts for the year 1860.  40 THE COURT:  You're at page 56?  41 MR. GOLDIE:  56, yes, my lord.  42 THE COURT:  Yes.  43 MR. GOLDIE:  And there's accounts, there's an abstract of them  44 on page 57, and there's his next despatch begins at  45 page 57, and he expresses regret at the bottom of page  46 58, about the last six lines, he expresses regret that  47 so few of Her Majesty's British subjects have as yet 21495  Documents read in  by Mr. Goldie  1 participated in the rich harvests reaped in British  2 Columbia, harvests of course relating to gold.  59 is  3 his despatch of October 24th, 1861, and it contains a  4 greater and greater amount of detail relating to the  5 Caribou gold finds.  And then Douglas to Newcastle of  6 November 14th starts on page 62, and I note nothing of  7 interest there, nor in the balance.  Page 66, as I  8 have noted, begins the despatches of the Duke of  9 Newcastle in response.  I have referred to the ones  10 dealing with the religious grants and Mr. Duncan's  11 grant.  The second despatch in that page, the last  12 paragraph --  13 THE COURT:  On page?  14 MR. GOLDIE:  66, my lord, the Colonial Secretary states:  15  16 "Subject to the stipulations which you suggest,  17 namely, that the land should be conveyed to the  18 Governor of the Colony for the time being, in  19 trust for the use and benefit of the Indians,  20 leaving them no power to alienate or dispose of  21 it, I have to authorize you to take the necessary  22 steps for conveyance of the lands in question."  23  24 That's the settlement of Duncan's proposed settlement.  25 And I have no other comments.  26 THE COURT:  Where's the language you just read, Mr. Goldie?  27 MR. GOLDIE:  That was his page 66, the second despatch on that  28 page.  2 9 THE COURT:  Oh, yes, thank you.  30 MR. GOLDIE:  He acknowledges receipt of Douglas' of the 18th of  31 February, and which enclosed the correspondence  32 between Cridge and Mr. Duncan.  The balance of these  33 are primarily acknowledging receipt of Douglas'  34 despatches.  There are fisheries regulations enclosed  35 with the despatch on page 68, the last despatch on  36 that page -- I shouldn't say fisheries regulations --  37 suggestions with respect to fisheries regulations, and  38 then the Appendix is of the Proclamations having the  39 force of law, and several of these I will be referring  40 to in greater detail, my lord -- or I should say more  41 accurately are referred to in greater detail in the  42 collection of documents relating to Calder and to  43 selected other documents.  Under tab 5 is the despatch  44 of Labouchere to Douglas on the 1st of February, 1858,  45 that is to say, prior to the, I'll call it the real  46 gold rush, and it deals with the potential immigration  47 of Mormon settlers or flight of Mormon settlers to the 21496  Documents read in  by Mr. Goldie  1 mainland, and Labouchere is giving him instructions.  2 THE COURT:  Who was Labouchere again?  3 MR. GOLDIE:  He at that time was the Colonial Secretary.  4 THE COURT:  Yes, thank you.  You have read extensively from this  5 document already.  6 MR. GOLDIE:  Yes.  7 THE COURT:  All right.  8 MR. GOLDIE:  I have, and I'm not going to repeat that.  And then  9 of course I make reference to the case on appeal,  10 which shows that Exhibit 11 was an extract from the  11 next document which I'm going to come to, "Papers  12 Relating to Indian Land Questions".  I hand up two  13 copies, my lord.  As your lordship will see, this is a  14 reprint of the original document.  It is the yellow  15 book referred to by Chief Justice Begby in his  16 observations on the Metlakatla issue which came before  17 him, and it is also related or referred to by Mr.  18 Justice Hall in the Supreme Court of Canada in the  19 Calder case.  It has been referred to in this trial on  20 a number of occasions.  It extends from virtually the  21 founding of the Vancouver Island colony to some -- to  22 a period some five to six years after union with  23 Canada, together with the one reference in 1877.  24 There are two command papers, that is to say, laid  25 before the legislative assembly of British Columbia.  26 The first runs from page 1 to page 170, and following  27 that page your lordship will find a document entitled  28 "Report Of The Government of British Columbia On the  29 Subject of Indian Reserves".  30 THE COURT:  Sorry.  Where do I find that, please?  31 MR. GOLDIE:  Immediately following page 170.  From pages 1 to  32 170 is the first of the command papers.  33 THE COURT:  Yes.  34 MR. GOLDIE:  And then pages 1 to 16 is an Order in Council which  35 sets forth in great detail -- sets forth in full a  36 report of the then Attorney-General, Mr. Walkem.  37 Attached to that as appendices are various documents  38 which have been referred to.  And then, my lord,  39 following page 16 is an Order in Council, the page  40 number being 433, and it is a return to the  41 legislature in 1877.  This -- these documents came  42 into being after British Columbia joined Canada and as  43 a result of the dispute or differences of opinion  44 which arose between Canada and British Columbia over  45 the allotment of reserves.  It is perhaps an  46 oversimplification to say that the difference can be  47 traced to the proposed size of the reserves, but that 21497  Documents read in  by Mr. Goldie  1 was certainly a feature of it; Canada proposing to  2 follow the policy that it followed on the prairies,  3 and British Columbia asserting that that policy may  4 have been appropriate for the prairies but was hardly  5 appropriate for the topography of British Columbia.  6 From other documents your lordship will see that this  7 controversy reached a peak, if I may put it that way,  8 about 1875, and it was resolved when the two  9 governments agreed upon the creation of a three-man  10 Indian Reserve Commission which had for its purpose  11 the implementation of term 13 of the B.C. Terms of  12 Union.  The 1877 document arose out of British  13 Columbians' view that the Indian Reserve Commission  14 work could be done by one person.  Before the dispute  15 was resolved by an agreement to appoint an Indian  16 Reserve Commission several matters of some importance  17 occurred.  One was the disallowance of the B.C. Land  18 Act, which was referred to, I believe, yesterday in  19 Mr. Adams' cross-examination of Mr. Williams, and  20 the -- a despatch by Lord Dufferin to the Colonial  21 Secretary, which was highly critical of British  22 Columbia and which purported to invoke the arbitration  23 powers of the Governor-General under term -- not the  24 Governor-General, the Colonial Secretary under term  25 13, the Earl of Carnarvon, who was then the Colonial  26 Secretary, declined to act at that time for reasons  27 which will become apparent, and the appointment or the  28 agreement on the appointment of the Indian Reserve  29 Commission appeared to be the -- to resolve the  30 matter.  The Orders in Council which embodied the --  31 I'll call it the solution, are found in this document,  32 my lord.  The Dominion Order in Council of November  33 10th, 1875, is set out beginning at page 160 and goes  34 through until page 163.  And it begins with these  35 words at the bottom of page 160:  36  37 "The Committee of Council have under consideration  38 the Minute in Council of the Government of British  39 Columbia of the 18th August last, adopting the  4 0 recommendations contained in a Memorandum of the  41 local Attorney-General, as the expression of the  42 views of that Government as to the best method  43 of bringing about settlement of the Indian Land  44 question, and submitting those recommendations for  45 the consideration and assent of the Government of  4 6 the Dominion.  47 They also had before them the Memorandum herewith 2149?  Documents read in  by Mr. Goldie  1 annexed, from the Honourable Mr. Scott, acting in  2 the absence of the Honourable the Minister of the  3 Interior, to whom the above-mentioned document  4 were referred, and they respectfully report in  5 concurrence in the recommendations therein  6 submitted, and advise that a copy thereof and  7 of this Minute be transmitted for the  8 consideration of the Government of British  9 Columbia."  10  11 And then the memorandum of Mr. Scott follows from 161  12 to 163, and it is an acceptance of some of the  13 important features of Mr. Walkems' report of the 18th  14 of August, and I'll come to that in a minute, but it  15 lays out the proposed Indian Reserve Commission and  16 summarizes the suggestions contained in Walkem's  17 memorandum.  Your lordship will see that the first  18 paragraph, numbered paragraph, on page 161, states:  19  20 "That no basis of acreage for Indian Reserves be  21 fixed for the Province as a whole, but that each  22 nation (and not tribe) of Indians of the same  23 language be dealt separately."  24  2 5 And then:  26  27 "That for the proper adjustment of Indian claims  2 8 the Dominion Government do appoint an agent to  29 reside with each nation."  30  31 He is there summarizing the suggestions contained in  32 Walkem's memorandum when he lists these numbered  33 items.  And at the bottom of the page:  34  35 "The suggestions in question are stated by Mr.  36 Walkem as having been made by Mr. Duncan in a  37 letter which is appended to the Order in Council.'  38  39 And then over on page 163 begins the modifications  40 suggested to effect a settlement, and each of  41 paragraphs 1, 2, 3, 4, 5, and 6 are relevant.  And Mr.  42 Scott notes on the second to last paragraph that of  43 the proceeding paragraphs, 3, 4, 5, and 6 are  44 substantially the same as those submitted in Mr.  45 Walkem's memorandum.  Now, at page 169 is the British  46 Columbia Order in Council, which documents the  47 provision for the -- the provisions suggested by the 21499  Documents read in  by Mr. Goldie  1 Dominion, and on page 170 is the Lieutenant-Governor's  2 despatch to the Secretary of State for the Colonies:  3  4 "My Lord, I have the honour to forward herewith for  5 Your Lordship's information, upon the advice of my  6 Ministers, a Minute of my Executive Council on  7 the subject of the Indian Land question in British  8 Columbia, in reference to which this Government  9 was apprised by the Government of the Dominion in  10 October, 1874, that a communication would be  11 addressed to Your Lordship conveying the views  12 of that Government, and I beg to state that, in  13 accordance with the desire of my Council, I have  14 this day, by despatch to the Secretary of State  15 for Canada, signified the acceptance, by this  16 Government, of the proposals made by the Dominion  17 Government for the settlement of this question,  18 and which are set forth in the Minute of Council  19 now enclosed."  20  21 So this was intended and is indeed a selection of  22 documents which provided the background to the dispute  23 between the Dominion and the Province, and which  24 records the agreement that was reached by the Dominion  25 and the Province which was intended to settle the  26 differences.  Your lordship will see from page 3 that  27 the contents of the main document which runs to page  28 170 consists of six parts:  The first "Conveyance of  29 Land to the Hudson's Bay Company", which is pages 5 to  30 11, reproduces the 14 so-called Fort Victoria  31 treaties, which were the land session agreements  32 between various tribes in the southern most area of  33 Vancouver Island and Mr. Douglas' agent of the  34 Hudson's Bay Company.  B, the second "Correspondence  35 Between The Secretary of State for the Colonies and  36 Governor Douglas", runs from pages 12 to 20, and for  37 the most part are extracts -- well, I think in all  38 they are extracts, I don't think the entire document  39 is enclosed, but are extracts from despatches passing  40 between Douglas and the Secretary of State of the  41 Colonies, which is sometimes refers to the mainland  42 colonies, sometimes refers solely to Vancouver Island.  43 A number of these have been referred to in the case  44 already.  For instance, on page 12 is an extract from  45 Sir Edward Bulwer Lytton to Governor Douglas of the  46 31st of July, 1858, which is taken from a larger  47 despatch and is in part one of the papers relative to 21500  Documents read in  by Mr. Goldie  1 the exhibit which we have just finished looking at.  2 The second despatch also relates to the mainland  3 colony.  Sometimes they can be distinguished and  4 sometimes it's difficult to know whether it's the  5 mainland colony or Vancouver Island which is being  6 referred to, but it is a general collection of  7 extracts.  The third section is "Correspondence  8 Between the Colonial Secretary and the Chief  9 Commissioner of Lands and Works", and this material  10 appears to be somewhat broken up, but it starts at  11 page 20 and runs through to page 86, then from 92 to  12 96, 164 to actually 167.  And the correspondence  13 appears to be related to the setting aside of Indian  14 reserves in basically the mainland colony before, but  15 it extends into the united colony before the colony  16 joined Canada.  Pages 164 to 167 contain examples or  17 notices of Indian Reserves printed in the Colonial  18 Gazette.  The next item, "Correspondence Between the  19 Reverend J.B. Good and the Colonial Government", runs  20 from pages 86 to 91, and it relates to a petition from  21 a Nicola Valley Indian chief seeking an enlargement to  22 a reserve which had been set aside some two years  23 earlier by Mr. O'Reilly in his capacity as a  24 stipendiary magistrate.  Then the next section is  25 "Correspondence Between the Lieutenant-Governor and  26 the Secretary of State for the Provinces" from pages  27 97 to 106.  And this is from the day after the union  28 of British Columbia with Canada, that is to say July  29 21st, 1871 to November of the same year.  And then the  30 second to last part, "Correspondence Between the  31 Indian Commissioner and the Provincial Government" on  32 pages 107 to 163 is indicative of the differences  33 which became very sharply related to the size of the  34 reserves and the setting aside of them.  35 THE COURT:  The differences between —  36 MR. GOLDIE:  The Dominion and the Province.  Basically the  37 correspondence is on the Dominion's part between  38 Colonel Powell, who had been appointed a  39 Superintendent and Agent for Indian affairs in British  40 Columbia by the Dominion in October, 1872, and various  41 provincial officials, who are either urging him to get  42 on with his work or to take issue with them in what he  43 was proposing to do.  And then the last one is "Report  44 of the Government of British Columbia on the Subject  45 of Indian Reserves".  46 THE COURT:  Sorry, you say the last one.  It's not mentioned in  47 the table of contents.  Oh, wait a minute, I'm sorry. 21501  Documents read in  by Mr. Goldie  1 I've been making my notes on the -- with relation to  2 the contents on page 3, and you're working on page 2,  3 they're the same, I think.  4 MR. GOLDIE:  Yes.  Basically they —  5 THE COURT:  Except for the last one.  6 MR. GOLDIE:  Yes.  7 THE COURT:  Yes, all right.  8 MR. GOLDIE:  And I said -- yes I'm sorry, my lord, I said page  9 3, but 2 gives your lordship the -- and then the  10 report follows page 170, and this was what was adopted  11 by the Executive Council of British Columbia on August  12 the 18th, 1875, and it's Mr. Walkem's report, and it  13 contains -- and this runs from pages 1 to 9, and Mr.  14 Walkem writing in 1875 says on page 2 of the report,  15 in the fourth paragraph --  16 THE COURT:  Just a minute, please,  17 MR. GOLDIE:  Your lordship has to go to page 170.  18 THE COURT:  Yes.  19 MR. GOLDIE:  And then the pagination starts all over again.  2 0 THE COURT:  Yes.  21 MR. GOLDIE:  And it's at page 2.  22 THE COURT:  Yes, thank you.  23 MR. GOLDIE:  And Mr. Walkem here is talking about the  24 differences between the policies of the Colonial  25 government and that of Canada.  And he says in the  26 fourth paragraph:  27  28 "The policy of the Dominion aims at a concentration  29 of the Indians upon Reserves, while that of the  30 Crown Colony, besides granting Reserves in cases  31 where the Indians preferred them, courted rather  32 an opposite result.  The Colonial Policy was first  33 inaugurated under the auspices of the Imperial  34 Government in 1858, the date of the foundation of  35 the Crown Colony."  36  37 Now, that of course refers to the mainland Colony.  38  39 "Under this policy the natives were encouraged to  40 mingle with and live amongst the white population  41 with a view to weaning them by degrees of savage  42 life."  43  44 Et cetera.  And then over on page 3 he talks at some  45 length on the matters which all relate to the  46 mainland, and then on page 4 at the top of the page he  47 says: 21502  Documents read in  by Mr. Goldie  1 "In disposing, however of the Crown lands, the  2 Colony, for obvious reasons, made a distinction  3 between the Indians and other resident British  4 subjects.  This may best be shown by quoting  5 Section 3 of the 'Land Ordinance, 1807'."  6  7 Now, by this time he's referring to the united Colony,  8 and at the bottom of the page he makes reference to  9 appendix B, which is the letter of Mr. Musgrave,  10 Governor of the United Colony, in 1870 to the Colonial  11 office, which encloses Mr. Trutch's memorandum on  12 the -- on Mr. William Sebright Green's letter.  Then  13 on page 5 at the bottom of the page he begins a  14 reference with the word:  15  16 "Strongly holding the above views and convictions,  17 the Provincial Government have, with great  18 reluctance, felt compelled to differ in opinion  19 from the Dominion Government on the subject  2 0 of Reserves."  21  22 And then that goes on.  And at the top of the page he  23 makes reference to Mr. Duncan's letter, which is  24 appendix C.  25 THE COURT: Is it convenient to adjourn, Mr. Goldie?  26 MR. GOLDIE: Yes, that's fine, my lord.  27 THE COURT: All right, thank you.  28  29 (MORNING RECESS TAKEN AT 11:15)  30  31 I hereby certify the foregoing to be  32 a true and accurate transcript of the  33 proceedings herein transcribed to the  34 best of my skill and ability  35  36  37  38  39 Graham D. Parker  40 Official Reporter  41 United Reporting Service Ltd.  42  43  44  45  46  47 21503  Documents read in  by Mr. Goldie  1 (Proceedings resumed following short recess)  2  3 THE COURT:  Mr. Goldie?  4 MR. GOLDIE:  Thank you, my lord.  5 I was going to comment a little further on the  6 report that begins following page 170 of the yellow  7 book, and in particular Mr. Duncan's suggestions which  8 both governments have referred to.  Mr. Duncan's two  9 letters, one is Appendix C, which is part of a letter  10 addressed to the Dominion Minister in May of 1875.  11 The first point I note at page 13, my lord, this is  12 where the appendix starts, Mr. Duncan, in the second  13 to last paragraph, states that he believes the present  14 organization of the Indian Department can never work  15 successfully, and he says:  16  17 "The first anomoly that strikes one is the  18 isolated existence of the department from the  19 influence and control of the Lieutenant-  20 Governor of the Province.  Such an arrangement,  21 however easy it may work in provinces nearer  22 Canada, will prove, I am fully persuaded,  23 perplexing and injurious to the Indians of  24 British Columbia.  Its tendency will be to  25 lower the Lieutenant-Governor in their  26 estimation of loyalty and engender towards the  27 white race antagonism of interest.  The  28 governor of the whites being no longer regarded  29 as the guardian of their welfare, they will  30 cease to respect him.  While the Indian  31 commissioner, though he may succeed in  32 enlisting their friendship, having no authority  33 among or over the whites, will fail to inspire  34 them with that salutory reverence necessary to  35 their good government."  36  37 And your lordship will later see that the idea of  38 having the Lieutenant-Governor of the province  39 involved in the Indian administration was taken up but  40 was found not to be a very workable arrangement and  41 was later abandoned.  42 And then he goes on to talk about reserves, and  43 that's at the bottom of page 14 and over on to 15.  I  44 am not going to say anything further about that,  45 except to say that he recommends not reserves of the  46 settlements occupied by the Indians, but the creation  47 of large new reserves where white -- where natives 21504  Documents read in  by Mr. Goldie  1 would be free of white influence.  And he concludes at  2 the bottom of page 15:  3  4 "The three gentlemen, the agent, the minister  5 and the schoolmaster..."  6  7 And I might add he intends that all three of  8 those people should reside in the reserve,  9  10 "...that you say severally employed and aiding  11 and encouraging each other, might reasonably be  12 expected to bring about such a state of things  13 as would warrant the town, at no very distant  14 date, being incorporated and have its own  15 native magistrate and thus cease to belong to  16 the Indian Department or need an Indian  17 policy."  18  19 Then over on page 16, is his letter of  20 July 6th, 1875 to Mr. Walkem, in which he says, in  21 the first paragraph:  22  23 "Having read over the correspondence between the  24 provincial government and the Indian Department  25 in reference to the question of the land  26 reserves for the Indians, I have now the honour  27 to submit for your consideration the following  28 remarks which contain my views."  29  30 Then he says :  31  32 "The three questions would be who among the  33 Indians shall be entitled to land?  Two, what  34 number of acres shall be granted to each so  35 entitled?  Three, what is to be done with  36 existing reserves."  37 And in the first one he talks about the difficulty  38 of alloting reserves on the basis of what a family of  39 five is entitled to.  As to the second one he  40 contrasts the government, the Dominion's request for  41 80 acres for each family of five while the provincial  42 government offers only twenty.  He says:  43  44 "The whole difference springs from the fact that  45 no definite information is before the  4 6 provincial government as to the number and  47 pursuits of the Indians in respect to 21505  Documents read in  by Mr. Goldie  1 localities or the kind of land to be preserved  2 for their use."  3  4 And he makes the following suggestions:  5  6 "That no basis of acreage for reserves be fixed  7 for the province as a whole but rather that  8 each nation of Indians be dealt with separately  9 on their respective claims."  10  11 That in fact was the cornerstone of the agreement  12 reached between the province and the Dominion.  13 And the -- it will be drawn to your lordship's  14 attention that Mr. Duncan nowhere talks about Indian  15 title.  16 I wish to go back for just a minute, my lord, to  17 the report of the -- I am sorry, the correspondence  18 between the colonial secretary and the chief  19 commissioner of lands and works, which is the third  20 item in the contents page on page 2.  21 This is, appears to be, a collection of documents  22 of an internal character, which may be taken to  23 purport to be the policy of the colony in relation to  24 its -- to the Indians, and it starts off at page 21.  25 Colonel Moody of the Royal Engineers was at this time,  26 namely, the 6th of March, 1861, the chief commissioner  27 of lands and works, and Mr. Cox was one of the  28 stipendiary magistrates.  And in the second paragraph  29 Colonel Moody sets out his instructions from the  30 governor but cautions Mr. Cox to be -- to scrutinize  31 the claims carefully as he has some reason to believe  32 that white persons have been interfering or have been  33 using the reserve allocation process to gain control  34 of land.  35 All of the examples, my lord, from page 21 through  36 to page 39, I believe deal with the mainland colony.  37 And then on page 39 there is the chief commissioner of  38 lands and works to Mr.O'Reilly, of 16th of November,  39 1866, and that marks the union of British Columbia and  40 Vancouver Island, and after that all the things, all  41 the correspondence deals with the united colony.  42 The examples include examples of pre-emptions by  43 Indians, a lot of instructions with respect to laying  44 out reserves, and at page 63 there is the application  45 of Mr. Tomlinson, who at that time was still a member  46 of the Church Missionary Society of the Anglican  47 Church, but who later followed Mr. Duncan and broke 21506  Documents read in  by Mr. Goldie  1 away from that allegiance.  His application of the  2 14th of June, 1869 for property on the Nass for a  3 mission station, similar to that one accorded to the  4 mission of the Church Missionary Society at  5 Metlakatla.  It was approved by Mr. Trutch, who was  6 then the chief commissioner of lands and works, in the  7 letter immediately following.  8 Then at pages -- I should say a number of these  9 documents have been -- some have been selected by Dr.  10 Lane, and while I am not identifying those at the  11 present time, your lordship may recognize some.  12 At page 95-96, the third letter down is Mr.O'Reilly  13 to the chief commissioner of lands and works of  14 October 21st, 1871, enclosing a description of two  15 government reserves which he has marked off at Babine  16 Lake, et cetera.  That -- the original of that was  17 filed by Mr. Williams in his material.  18 These papers were laid before the legislative  19 council, Legislative Assembly of British Columbia, as  20 I have stated, in 1876, for the document that runs  21 through to the end of page 170, and then the document  22 that is at page 433, the second, the last page of the  23 yellow book, that was filed in 1877.  24 My lord, I tender that as an exhibit.  25  26 (EXHIBIT 1182:  BRITISH COLUMBIA PAPERS, INDIAN LAND  27 QUESTION, 1850-1875, 1877)  28  29 MR. GOLDIE:  My lord, the next document I hand up now is  30 entitled A Report From the Select Committee on the  31 Hudson's Bay Company, together with the proceedings of  32 the committee, minutes of evidence, appendix and  33 index, and as the title page indicates, it was ordered  34 by the House of Commons to be printed on July 31st,  35 and August 11th, 1857.  36 THE COURT:  This is the Imperial House, is it?  37 MR. GOLDIE:  Yes, it is, my lord.  3 8    THE COURT:  Thank you.  39 MR. GOLDIE:  The — as the report itself indicates, the House of  40 Commons appointed a committee because the exclusive  41 trading licence which had been granted to the Hudson's  42 Bay Company in 1858 for a period of 21 years over the  43 northwestern portion of British America, which goes by  44 the name of the Indian Territory, would shortly  45 expire.  46 The report, which begins at the second page in, my  47 lord — 21507  Documents read in  by Mr. Goldie  1 THE COURT:  What were the dates again, 18 —  2 MR. GOLDIE:  Well, in 1858.  I am sorry, the 1820 —  3 THE COURT:  I thought it was 1821?  4 MR. GOLDIE:  1820 — 1838.  It's referred to at paragraph one of  5 the report, the second page in, and I quote:  6  7 "The near approach of the period when the  8 licence of exclusive trade granted in 1838 for  9 21 years...."  10  11 And it goes on to say:  12  13 "...would alone make it necessary that the  14 conditions of the whole of the vast regions,  15 which are under the administration of the  16 company, should be carefully considered, but  17 there are other circumstances, which in the  18 opinion of your committee, would reduce the  19 powers, the duty of the parliament and the  20 government of this country."  21  22 Paragraph two:  23  24 "Among these, your committee would specially  25 ennumerate the growing desire of our Canadian  26 fellow subjects that the means of extension and  27 regular settlement should be afforded to them  28 over a portion of this territory."  29  30 If I may pause there, my lord, the "Canada" that is  31 referred to was, of course, the Colony of Canada,  32 sometimes Upper Canada and sometimes Lower Canada, and  33 at one time Quebec.  34 Then continuing at paragraph two:  35  36 "The necessity of providing suitably for the  37 administration of the affairs of Vancouver's  38 Island, and the present condition of the  39 settlement which has been formed on the Red  4 0 River, your committee have received much  41 valuable evidence on these and other subjects  42 connected with the inquiry which has been  43 entrusted to them, especially of having the  44 advantage of hearing the statements of Chief  45 Justice Draper, who was commissioned by the  46 Government of Canada to watch this inquiry."  47 2150?  Documents read in  by Mr. Goldie  1 Then the opinion of the law officers of the Crown  2 with respect to the Charter of the Hudson's Bay  3 Company, and paragraph 5:  4  5 "The territory over which the company now  6 exercises rights is of three descriptions:  7 First, the land held by Charter or Rupert's  8 Land; second, the land held by licence, or the  9 Indian Territory; third, Vancouver's Island."  10  11 Then paragraph 10:  12  13 "Your committee are of opinion that it will be  14 proper to terminate the connection of the  15 Hudson's Bay Company with Vancouver's Island as  16 soon as it can be conveniently done, as the  17 best means of favouring the development of  18 natural advantages of that important colony.  19 Means should also be provided for the ultimate  20 extension of the colony over any portion of the  21 adjoining continent to the west of the Rocky  22 Mountains upon which permanent settlement may  23 be found practicable."  24  25 That, of course, is the mainland of British  26 Columbia.  Paragraph 11:  27  28 "As to those extensive regions, whether in  29 Rupert's Land or in the Indian territory, in  30 which for the present at least there can be no  31 prospect of permanent settlement to any extent  32 by the European race for the purposes of  33 colonization, the opinion of which your  34 committee have arrived is mainly founded on the  35 following considerations:  First, the great  36 importance to the more peopled portions of  37 British North America, that law and order  38 should, as far as possible, be maintained in  39 these territories.  Second, the fatal effects  40 which they believe will infallibly result to  41 the Indian population, a system of open  42 competition in the fur trade, and the  43 consequent introduction of spirits in a far  44 greater degree than is the case at present.  45 And, third, the probability of the  46 indiscriminate destruction of the more valuable  47 fur-bearing animals in the course of a few 21509  Documents read in  by Mr. Goldie  1 years.  2 12.  For these reasons your committee are of  3 the opinion that whatever may be the validity  4 or otherwise of the rights claimed by the  5 Hudson's Bay Company under the Charter, it is  6 desirable that they should continue to enjoy  7 the privilege of exclusive trade which they now  8 possess, except insofar as those privileges are  9 limited by the foregoing recommendations."  10  11 Now, the committee sat for some, if my count is  12 correct, some 18 days; the chairman was Mr. Labouchere  13 who, if not then, shortly thereafter became the  14 colonial secretary, and the balance of the report is  15 taken up with the viva voce evidence which was given.  16 And I am going to -- there were about 25 witnesses,  17 I am going to refer to only about eight of them.  18 The relevance of this, my lord, if I need say it,  19 is that this is the year in which gold was first found  20 on the mainland of British Columbia.  The  21 committee's -- the evidence given to the committee was  22 as to the suitability of the mainland for settlement,  23 was conflicting.  As I have read from paragraph 11 of  24 their report, the committee didn't make a finding  25 other than to say there are reasons, even in respect  26 to the areas for which there can be no prospect of  27 permanent settlement at the present time, that the law  28 and order should be -- the maintenance of law and  29 order should be extended over those territories.  30 That was the state of mind of parliament, the  31 Imperial Parliament, as I say, in the year in which  32 gold was discovered on the mainland.  33 There are maps which are provided in the --  34 THE COURT:  I am sorry, I have lost your reference to page 11.  35 MR. GOLDIE:  Well, did I say page 11?  It should be —  36 THE COURT:  It looks like page 11 is —  37 MR. GOLDIE:  It's paragraph 11 my lord, sorry.  Paragraph 11 on  3 8 Roman iv.  3 9 THE COURT:  Thank you.  40 MR. GOLDIE:  The maps, which form part of the report, and they  41 are referred to in the title page preceding them, as  42 "plans referred to in the report", include a map of  43 North America, which I wish to refer to in just a  44 minute, my lord.  And it may be a little hard to  45 follow, but in the left-hand corner, under the heading  46 Map of North America, drawn by J. Arrowsmith, it  47 states: 21510  Documents read in  by Mr. Goldie  1  2 "On this map the territories claimed by the  3 Hudson's Bay Company in virtue of the Charter  4 granted them by King Charles II are coloured  5 green, other British properties pink and those  6 of Russia yellow."  7  8 On the right-hand side, your lordship will see the  9 Colony of Canada denominated Canada West and Canada  10 East, with the colonies of New Brunswick, Nova Scotia,  11 Newfoundland and Labrador identified.  And then on the  12 west, full west of the continent, with the exception  13 of the yellow of the Russian territories, is coloured  14 pink.  15 I propose giving to your lordship only the --  16 THE COURT:  Is there a date on the map?  17 MR. GOLDIE:  Yes, it's 1857, my lord.  You will see that right  18 at the very bottom centre of the map, "London,  19 published 1857 by John Arrowsmith", and then over to  20 the right, "Ordered by the House of Commons to be  21 printed 31st July and 11th August."  22 I was going to say that the geographic features  23 which are identified in what is now British Columbia,  24 and which is identified on this map simply as  25 Columbia, a name that runs more or less north and  26 south, may be identified between the B and the R of  27 the larger printing British North America.  Between  28 the U and the M of Columbia your lordship will see  29 Simpson's River, which runs more or less east and  30 west, towards what's called the Peak Mountains, and  31 then north of that is Thutade Lake and apparently  32 draining that is Finlay River.  Fort Langley is shown,  33 as is Victoria.  34 I am going to refer to some eight of the witnesses,  35 my lord, and the first one is John Ross.  And I am  36 referring to questions one to ten of his evidence and  37 56 to 66.  Mr. Ross was a member of the Canadian  38 Parliament and he held positions in the government of  39 that colony, and --  4 0 THE COURT:  Where do I find this?  41 MR. GOLDIE:  This is beginning on page one, my lord.  It follows  42 Roman numeral xviii, headed Minutes of Evidence.  4 3 THE COURT:  Yes.  44 MR. GOLDIE:  And questions one to ten provide the background of  45 Mr. Ross's interest and experience, then questions 56  46 to 66.  Question 56:  47 21511  Documents read in  by Mr. Goldie  1 "Q   I suppose you are perfectly familiar with the  2 the system of colonization on the part of the  3 United States under the ordinance of 1783?  4 A   Yes, I think I know the whole of the system as  5 it is pursued.  6 Q   Have you ever contemplated the propriety of  7 giving that power to the Colonial Government to  8 make territories after the fashion of the  9 American government?  10 A   It was at one time spoken of in Canada, and it  11 was considered that there would be very great  12 difficulties connected with it; I may mention a  13 fact which probably will be within your  14 recollection; I think it was in the year 1849.  15 The Canadian government had previously granted  16 licences to certain companies for mining  17 purposes on Lake Superior."  18  19 Then he speaks of that in greater detail.  And how  20 they, the people who were mining were interfered with,  21 and then picking up halfway down that answer:  22  23 "The Canadian Government of course arrested the  24 parties, and so far as the Indians were  25 concerned, upon the expression of their  26 contrition for doing wrong, they were forgiven,  27 and in the end a compensation was given to them  28 to surrender their rights; but that cost the  2 9 Canadian government so much money, that I think  30 whatever they might have considered as regards  31 colonization, they felt very much alarmed at  32 the idea of getting into contact with Indians  33 since.  34 Q   Then I understand your objection to be, that  35 money should be paid by the Canadian  36 Government.  If it were paid by the Imperial  37 Government I suppose you would see no objection  38 to that compensation being made?  39 A   The question of compensation as regards the  40 Imperial Government I have not raised at all.  41 I think if the Canadian Government required for  42 purposes of settlement any portion of the  43 territory which is not within their borders,  44 such compensation as might be considered fair  45 they might be fairly be called upon to pay."  46 Then he was questioned again on that point.  And he  47 is questioned variously with respect to compensation 21512  Documents read in  by Mr. Goldie  1 to the Hudson's Bay Company and to Indians in case  2 their territory is required for settlement.  3 Then Sir George Simpson, who of course at that time  4 was the governor in Canada of the affairs of the  5 Hudson's Bay Company, beginning on page seven --  6 sorry, that's not right.  Page 44, question 702 to  7 709, is his statement that he has been governor of the  8 territories of the Hudson's Bay Company in Canada for  9 some 37 years.  He is questioned by Mr. Ellice, who,  10 the evidence has already established in this case, my  11 lord, was a member of parliament, a member of the  12 Northwest Company, one of the principals effecting the  13 merger of the Northwest Company and the Hudson's Bay  14 Company, and he subsequently gave evidence in which he  15 identifies his interests.  But he is a member of the  16 committee, he is a member of parliament.  17 I would put in question 702 to 709, which  18 establishes Sir George Simpson's position.  19 Then question 1015, my lord, which is found at --  20 begins at page 58, 1015 to 1017:  21  22 "Q   I believe during the last few years there has  23 been warfare of the most dreadful description  24 carried on between the inhabitants of the  25 United States in Oregon and the Indian tribes  26 in that neighbourhood?  27 A   There has been.  28 Q   It has extended to your frontier, has it not?  29 A   Yes.  30 Q   But it has never passed that frontier?  31 A   It has not gone beyond; we have sufficient  32 influence with the Indians in the British  33 territory west of the mountains to keep them  34 out of it."  35  36 At 1092, at page 63, he is there -- he is here  37 talking about the settlement on the Red River area, my  38 lord.  92 to 1096:  39  40 "Q   There is an idea that the Company opposes the  41 settlement of Indians as agricultural labourers  42 or as a Christian community?  43 A   Is not the case.  44 Q   What is the tenure of the land in the Company's  45 territory?  46 A   Nine hundred and ninety-nine years.  47 Q   Is the right of the Indians to sufficient lands 21513  Documents read in  by Mr. Goldie  1 for their support recognized?  2 A   They occupy lands wherever they please.  The  3 Indian has never been required to pay for  4 lands.  5 Q   Do you pay no chief for the occupation of lands  6 yourselves in the Indian settlement?  7 A   There is a very old respected chief, a man who  8 has been very friendly to the whites; we  9 support him principally.  10 Q   Do you not recognize their holding, their  11 possession of land?  12 A   No; the land was purchased of them, I think, in  13 the time of Lord Selkirk by a regular purchase;  14 a certain quantity of ammunition and tobacco,  15 and various other supplies being given for it."  16  17 1153 to 1062 --  18 THE COURT:  What is the reference to the 999 years, is that in  19 the Charter?  20 MR. GOLDIE:  No, my lord, that's the — that — there is a  21 further reference to it, that was the tenure which  22 settlers in the Red River Colony got, was a lease for  23 999 years.  24 THE COURT:  All right.  25 MR. GOLDIE:  Question 1153 to 1162, and I won't read those.  26 Those are taken up with the regulation of government  27 in the Red River Colony.  1207 to 1217 is the  28 acquisition of land in the Red River Colony, and that  29 answers your Lordship's question, the last question  30 being by Mr. Grogan, a member of the committee:  31  32 "Q   In the event of a person coming from England,  33 for instance, and purchasing land, as you say,  34 at five shillings an acre from you, is the land  35 conveyed to him in fee-simple, or for any  36 particular term or under any deed?  37 A   It is conveyed to him under a lease of 999  38 years."  39  40 And 1285 to 1288 on page 71:  41  42 "Q   Do you consider that your right to sell land is  43 the same in those territories which you hold  44 under your charter, and in those which you hold  45 under your licence to trade?  46 A   No; we do not consider that we have any right  47 to sell land under our licence to trade. 21514  Documents read in  by Mr. Goldie  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  A  Am I mistaken in supposing that you said that  you considered yourselves justified by your  licence to trade, in selling land in the Oregon  Country?  A special provision was made in the treaty for  such sale, respecting our possessory rights "  THE COURT:  MR. GOLDIE:  THE COURT:  MR. GOLDIE:  My lord, that's a reference to the provisions in  the Treaty of 1846 to the Hudson's Bay Company's  interests in Oregon.  "MR. ELLICE:  That related to property which the  company actually created?  A   Yes.  Q   Which you could occupy, but not sell?  A  We were proprietors as well as occupiers."  And 2059 —  Sorry, one --  Page 105, my lord, questions 2059 to 2073.  Thank you.  Page 95?  No, 105, my lord.  These questions relate to the Mainland of British  Columbia, and I am only going to read question 2059:  "Q   Are you able to form any opinion as to how much  of it or whether any of it, or any of it is fit  for colonization?  I speak of the Mainland, not  of Vancouver's Island.  A  Very little of it I think is fit for settlement  and colonization north of 49 degrees, from the  rugged character of the country; it is  exceedingly rugged and mountainous country."  And then the Reverend Corbett, then the Reverend  Corbett at page 137, and, my lord, a portion of his  evidence was referred to in Dr. Lane's cross-  examination.  And this arose out of the fact that he  corresponded with the Colonial Office after he had  given evidence, and wished for a copy of the evidence  and made certain other remarks about title, which were  minuted by the Colonial Office.  That is found in  Exhibit 1056-25.  The questions are 2656 to 2663,  establishes his missionary status.  And that's all I  am putting in here for Mr. Corbett.  MR. GUENTHER:  The numbers again, please?  MR. GOLDIE:  2656 to 2663.  Mr. Cooper, at page 190, was a gentleman who had 21515  Documents read in  by Mr. Goldie  1 resided for some six years on Vancouver's Island as a  2 resident colonist, and that's indicated in questions  3 3558 to 3571.  4 At 3594 to 3597 he comments on the difference  5 between the Indian wars carried on on the American  6 side of the frontier and what has happened on  7 Vancouver's Island.  8 3605 to 3608 in which he expressses his opinion  9 that Vancouver's Island could be constituted a British  10 colony in the ordinary manner.  11 3633 to 3636, again there is reference to the wars  12 in the United States, and his description of the  13 policy of the Hudson's Bay Company.  14 3661 to 3666, dealing with his complaints about the  15 management of the Hudson's Bay Company of the  16 Vancouver's Island colony.  17 And 3902 at page 204, to 3926, he was asked about  18 his opinion of settlement on the mainland.  And he had  19 very favourable comments to make about some areas in  20 it.  And it is in this evidence in which he refers to  21 gold being found in the Thompson's River area.  22 The Honourable W. H. Draper, whose evidence begins  23 at page 210, he states at question 4038 to 4042, the  24 nature of his office, Chief Justice of the Court of  25 Common Pleas of Upper Canada, and the reasons for his  26 interest in the proceedings before the committee.  27 4081 to 4083, beginning at page 216:  28  29 "Q   At present in Canada you have no trouble with  30 the Indians, I believe?  31 A   None whatever.  32 Q   Are you at all apprehensive that the Red River  33 Settlement might bring you into contact with  34 the Indians who would be troublesome?  35 A   Not if the Indians were justly dealt with."  36  37 Then the next question and answer relate to the  38 conflicts on the American side of the border.  And I  39 needn't read that.  40 4165 to 4167 — well, I should note, 4101, my lord:  41  42 "Q   Have you not some concurrent jurisdiction with  43 the Hudson's Bay Company in judicial matters  44 over the whole of that territory?  45 A   There are two statutes regulating that matter,  46 and conferring jurisdiction upon the courts of  47 the colonies within those limits.  The first of 21516  Documents read in  by Mr. Goldie  1 them gave jurisdiction over offences committed  2 within the Indian territories.  The second was  3 an explanatory Act stating that the offences  4 committed within the territory belonging to the  5 Hudson's Bay Company were included in the term  6 'Indian territories'."  7  8 And 4165 to 4167, reference again to collisions  9 between the Indian and the Canadian Government upon  10 islands in the northern part of Lake Superior.  The  11 witness states that compensation would be paid to the  12 Indians and of the policy of the Canadian government.  13 And Joseph Maynard, at page 247, he is the  14 solicitor of the Hudson's Bay Company, my lord, and  15 questions 4442 to 4446 simply identify some of the  16 licences which the Hudson's Bay Company used in their  17 statutory background.  18 Blanshard at page 285, questions 5097 to 5104,  19 established that he was the first governor of  20 Vancouver's Island.  Question 5104:  21  22 "Q   You say that you were appointed by the Crown;  23 and what relation did you conceive yourself to  24 stand with the Hudson's Bay Company?  25 A   In none whatever."  26  27 5132 to 5146:  28  29 "Q   Was there any survey of the island, or of any  30 part of the island?  31 A   I believe some of portion of it has been  32 surveyed since.  33 Q   But was there any when you were there?  34 A  Very little; there had been a survey of their  35 own claim, commenced by the Hudson's Bay  3 6 Company.  37 Q   What do you mean by a 'survey of their own  38 claim'?  39 A   There was a portion of land which they marked  40 out which was claimed by themselves.  I think  41 it was supposed to contain ten square miles.  42 Q   In what part of the island was that?  43 A   Round Fort Victoria.  44 Q   And that they claimed as their own property?  45 A   That they claimed as their own property.  46 Q   I thought that all the island was conceded to  4 7 them? 21517  Documents read in  by Mr. Goldie  1 A   True, but then it was on condition of selling  2 the land; this they claim as their own reserve.  3 Q   And this they would not sell?  4 A   This they did not intend to sell.  5 Q   They would not sell it?  6 A   They would not sell it.  7 Q   Was that round any part which was settled?  8 A   It was where the only settlement was except at  9 Fort Rupert.  10 Q   And they refused entirely to sell that land?  11 A   They refused to sell it.  12 Q   Was that no obstruction to its colonization?  13 A   I should say that it was a very great one.  14 Q   Was there my money paid to the Colonial  15 Exchequer for that ten miles of land by the  16 company?  17 A   I do not know whether any has been paid since;  18 there was none paid at the time.  19 Q   At the time of which you speak, the company  20 exercised the right of not selling any part of  21 that land, or allowing any settler to purchase  22 it?  23 A   Yes.  24 Q   Were any of their own servants located in that  25 ten miles?  26 A   Yes, two or three.  27 Q   Did they purchase the land from the company?  28 A   That I really cannot tell.  I never heard of  29 any money being paid."  30  31 Your lordship may recall in the cross-examination  32 of Dr. Lane it was suggested that that was the subject  33 matter of the Vancouver Island agreements.  34 Question 5246 to 5260, he is questioned about  35 colonization of Vancouver Island and the relationship  36 of the Indians and his description of them.  And he  37 also delivered a petition which is critical of the  38 Hudson's Bay Company, and that is set out at page 293.  39 Then question 5284 to 5290 on page 294.  40 THE COURT:  Starting where?  41 MR. GOLDIE:  Page 294, question 5284.  And again further  42 reference is made to the ten square miles which the  43 company reserved for itself.  44 Mr. Edward Ellice at page 322, questions 5775 to  45 5779, establishes his acquaintanship with Canada and  46 his connection with the Northwest Company and the  47 Hudson's Bay Company. 2151?  Documents read in  by Mr. Goldie  1 Question 5784 is again background, his background  2 to the, part of his background to the merger of the  3 Hudson's Bay Company and the Northwest Company.  4 5783.  5 THE COURT:  Sorry?  6 MR. GOLDIE:  I am sorry, 5833.  He is being questioned here  7 about the boundary between "your territory", that is  8 to say, the territory of the Hudson's Bay Company and  9 Canada, and his answer is:  10  11 "A   Yes, I have considered it very much.  Until you  12 have some decision of a court of law against  13 it, you must take the words of the charter.  At  14 that time the Crown had undoubted right to  15 grant what it could grant in point of land.  16 Taking the grant in connection with the various  17 occasions on which the Legislature and the  18 Government of this country have been cautious  19 to preserve, and to save the rights of the  20 Hudson's Bay Company, I do not think there can  21 be any doubt as to the boundaries of the  22 Hudson's Bay Company.  I have read a paper  23 which Mr. Draper delivered to this committee  24 upon the subject.  The only difference which I  25 should have with Mr. Draper is with regard to  26 the line which he would suggest as the boundary  27 between the Hudson's Bay territories and some  28 unknown territory (because it cannot belong to  29 Canada) bounded the line of 49 degrees.  Mr.  30 Draper founds his inferences as to the southern  31 boundary of the Hudson's Bay territories on  32 some discussions which took place at an early  33 period between the French and English  34 governments relative to the eastern boundaries  35 on the Labrador coast.  At that time I do not  36 believe that either government knew anything of  37 the country to the westward of Lake Superior.  38 Then if you come down to the Act of Parliament  39 constituting the boundaries of Canada, which I  40 hold, after all, to be the great authority upon  41 which we must proceed, the Act of Parliament  42 defines the limits of Canada to be bounded  43 westward by the Mississippi, and thence to  44 where the line touches the lands granted to the  45 Hudson's Bay Company."  46  47 And he is asked the question: 21519  Documents read in  by Mr. Goldie  1  2 "Q   What Act of Parliament is that?"  3 And he is referring to the Quebec Act, 1774 an Act  4 of Parliament of 14 George III.  5 Then at 5850 to 5859, beginning at the bottom of  6 page 333, he is questioned about the management of the  7 Hudson's Bay Company of Vancouver's Island.  And he is  8 asked about the establishment of a legislature and  9 that, and he says, in answer to question 5853, which  10 was:  11  12 "Q  "Did this free legislature come into action?  13 A   Directions have been sent to assemble a  14 legislature.  If you are content with a sham in  15 the beginning, which for the moment may work  16 your temporary purpose, with the perfect  17 knowledge that at no distant time it must  18 subvert your whole arrangements, then I say  19 nothing against your free legislature as it is  20 present constituted."  21  22 And he goes on to embark upon, goes on to enlarge  23 upon that.  24 And then he says, at 5859:  25  26 "Q    Do you think that if would be desirable, in the  27 event of Vancouver's Island being made a  28 colony, to connect with it a portion of land  29 upon the adjacent coast?  30 A   No, I think you would have quite abundant work  31 in Vancouver's Island.  The Indians are rather  32 difficult at management upon the adjacent  33 coast.  Wherever Indians live in great  34 abundance they are not very easily dealth with.  35 They live in very great abundance from the  36 quantity of fish which the country produces and  37 they have been very troublesome both to the  38 American navigators and to our navigators and I  39 think it would be very advisable to keep the  4 0 whole Indian country under the management of  41 the Hudson's Bay Company until you wanted to  42 settle it.  When you want to settle it then, of  43 course, it should be taken from the Hudson's  4 4 Bay Company."  45 And then 5994, beginning at page 346, to 6017, and  46 he is there being asked about the Red River Settlement  47 and then over at question 6001, he says: 21520  Documents read in  by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. GOLDIE:  "Q   Have you extinguished the Indian title to the  land of this settlement?  A  We are getting...".  This is Red River, is it?  Yes, it is, my lord.  "A  We are getting into a question about Indian  title, which is very difficult altogether.  The  English Government never extinguished the  Indian title in Canada when they took  possession; the Americans, while they have been  extending their possessions, have extinguished  the Indian title, but in Canada there has never  been any treaty with the Indians to extinguish  the title; the Crown, retaining certain  reserves for the Indians, have always insisted  upon the right to occupy the lands, and to  grant the lands.  Q   Do you know the amount of the compensation made  by Lord Selkirk to the Indian?  A   No.  I never heard that he made any, and I am  inclined to think that he would have made none,  except that he wanted at that time to keep the  Indians at peace; he may give them wampum.  A  bottle of rum used to be very good  consideration to the Indians for any given  tract of land in those days.  Q   Are you aware of whether the rights of Lord  Selkirk were under any treaty?  A   I am not aware of that."  And I should include in that 6016 to 6017, which  refers to the renewal of -- the condition that was  established in the licence of establishing colonies  within the Indians' territories over which the licence  was given.  That refers to what is now British  Columbia.  6032 --  THE COURT:  I think this might be a convenient time to adjourn,  Mr. Goldie.  MR. GOLDIE:  Thank you, my lord.  THE COURT:  Thank you.  2 o'clock.  (PROCEEDINGS ADJOURNED FOR LUNCH) 21521  Documents read in  by Mr. Goldie  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  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  Wilf Roy  Official Reporter 21522  Documents read in  by Mr. Goldie  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  (PROCEEDINGS RECOMMENCED AFTER RECESS)  THE REGISTRAR:  Order in court.  THE COURT:  Mr. Goldie.  MR. GOLDIE:  My Lord, I was at page -- just turning to page 350  in the report of the Select Committee on the Hudson's  Bay Company of 1857, and the question and answer  referred to on page 350 is 6032:  "We have heard of Governor Douglas, the Governor  of Vancouver's Island; have you formed any  opinion of that gentleman?  I believe he is an excellent Governor; the  Colonial Office had a great opinion from all  that I have heard."  THE COURT: I'm sorry, where did you start to read on page 350?  MR. GOLDIE:  It's the third question down.  6032.  THE COURT:  Thank you.  Yes.  Thank you.  MR. GOLDIE:  Did I give to Your Lordship questions --  THE COURT:  No.  MR. GOLDIE:  6016 and 6017 on the preceding page.  THE COURT:  I think so.  MR. GOLDIE:  All right —  THE COURT:  Yes, you did.  Yes.  MR. GOLDIE:  All right.  Then in the appendices, page 361, is  the form of deed in Rupert's Land, which is a grant  for 999 years.  It's referred to there as a term of a  thousand years.  And I expect there is the usual  provision for a one year reservation.  Then at page 367 -- well, actually beginning at  365 is an estimate of Indian population provided by  the Hudson's Bay Company, with the statement beginning  about the great difficulty in obtaining reliable  information, and that:  "The following estimates have been compiled with  great care from a mass of documents and the  actual personal knowledge of several of the  Company's officers tested by comparison with  published statements, especially those  presented to government in 1846 by Messrs.  Warre and Vavasour, and those of Colonel Lefroy  contained in a paper read before the Canadian  Institute."  And on page 367 there is the population estimate, 21523  Documents read in  by Mr. Goldie  1  2  3  4  5  6  7  8  9  THE  10  MR.  11  12  THE  13  MR.  14  15  THE  16  MR.  17  18  THE  19  MR.  20  21  THE  22  MR.  23  24  THE  25  MR.  26  27  28  29  THE  30  MR.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  which is described as "number of Indians frequenting  it".  "It" being the post in question.   Those on  Vancouver Island, three in number, Fort Victoria, Fort  Rupert and Nanaimo, total 12,000 in all.  It's  difficult to give the corresponding number for the  mainland, because Honolulu is included in New  Caledonia.  A great mistake that we ever allowed it to  get away.  And the --  COURT:  Maybe it's still ours.  GOLDIE:  The number of 12,000 is given for all of New  Caledonia.  COURT:  Where is that?  GOLDIE:  That's -- does Your Lordship see at the bottom of  that table on page 367?  Beginning with Stuart's Lake.  COURT: I found Fort Victoria and Rupert, Nanaimo.  GOLDIE:  If you go down, it starts Fort Langley, and that's  identified as Indian territory.  COURT: Yes.  GOLDIE:  And then there is Fort Simpson, Kamloops, Fort  Hope, Stuart's Lake.  COURT:  Yes.  GOLDIE:  Your Lordship will see that for all of what is  described as New Caledonia.  COURT:  Uh-huh.  GOLDIE:  Namely McLeod's Lake, Fraser's Lake, Alexandria,  Fort George, Babines, Connolly Lake and Honolulu,  although -- it may be that my copy isn't too clear.  It may be that the bracket excludes --  COURT:  My bracket stops after Connolly's Lake.  GOLDIE:  In that case 12,000 is the estimate for New  Caledonia.  2,000 for Thompson's River.  35,000 for  the northern tribes frequenting Fort Simpson.  10,000  for the northwest coast tribes frequenting Fort  Simpson, and 4,000 for Fort Langley.  In the next part of that on the same page it  states:  "The Indian Races shown in detail in the  foregoing Census may be classified as follows:  'Indians in British Oregon and on the northwest  coast 80,000. ' "  The next page, 368, is "Regulations for Promoting  Moral and Religious Improvement".  And that includes  treatments of the Indians.  And at the bottom of page  368, going on over to 369 is the agreement that Sir  George Simpson reached with the Russian American 21524  Documents read in  by Mr. Goldie  1 Company with respect to sale of liquor to Indians in  2 the northwest coast.  3 THE COURT:  Did you say the Russian American Company or Russian  4 and Americans?  5 MR. GOLDIE:  I think it's — I think that's the name of the  6 company, My Lord, Russian American Company.  7 THE COURT:  Thank you.  8 MR. GOLDIE:  And it was the company that was trading in what is  9 now called Alaska panhandle, and had been for some  10 time.  And Simpson had reached an agreement with them  11 to -- it was in terms to prohibit the use of sprituous  12 liquor in the fur trade, but I think it's regarded  13 as -- by scholars as having an effect which went  14 somewhat further than that.  It limited the southward  15 extension of the Russian American Company's trading.  16 At page 419 -- I should say at page 408 there is a  17 copy of the charter for incorporating the Hudson's Bay  18 Company.  19 At page 419 and extending over to page 422 is a  20 copy of a letter from Sir George Simpson to J.H.  21 Pelly, who is the chairman of the committee in London  22 of the Hudson's Bay Company, dated the 1st of  23 February, 1837.  And Simpson is reporting on the state  24 of the Indian company and trade, both previous to the  25 year 1821 and since that time, when the Hudson's Bay  26 Company as merged had an exclusive licence.  27 At page 420, second paragraph from the end of that  28 page, beginning with the words:  29  30 "The Hudson's Bay Company have likewise  31 established missions and schools at several of  32 their principal depots or posts on the Columbia  33 River."  34  35 And Your Lordship will recall that at that time  36 the main post of the Hudson's Bay Company on the west  37 coast of North America was on the Columbia River and  38 what is now Oregon.  39 And at page 421, after reporting on the general  40 state of affairs there, it's fifth paragraph from the  41 bottom, beginning with the words:  42  43 "The fur trade ..."  44  4 5 THE COURT:  Yes.  46 MR. GOLDIE:  47 21525  Documents read in  by Mr. Goldie  1 "Is the principal branch of business present in  2 the country situated between the Rocky  3 Mountains and the Pacific Ocean."  4  5 And he says :  6  7 "On the banks of the Columbia River, however  8 when where the soil and climate are favourable  9 to cultivation, we are directing our attention  10 to agriculture on a large scale."  11  12 And commenting favorably on the country between  13 the north bank of the Columbia and the south bank of  14 the Fraser.  And then he goes on to speak briefly of  15 the population in the Red River settlement.  And then  16 the last paragraph he says that it is necessary to  17 establish a court of justice there.  18 Page 429 —  19 THE COURT: Where does it say —  20 MR. GOLDIE:  On page 422, My Lord, the last paragraph.  21 THE COURT:  Yes.  22 MR. GOLDIE:  After talking about the —  23 THE COURT:  Yes, I see.  Thank you.  24 MR. GOLDIE:  Yes.  And I'll make further reference to that  25 later.  Page 429, which is part of a letter from the  26 Governor of the Hudson's Bay Company to the Lords of  27 the Committee of Privy Council for trade of 7th  28 February, 1838.  There is a description at page 429 of  29 the country denominated Indian territories  30 comprehended in the Royal Licence.  This is the second  31 to last paragraph.  32  33 "The country denominated 'Indian territories',  34 comprehended in the Royal Licence, is  35 principally situated on the west side of the  36 Rocky Mountains, the most valuable part thereof  37 being the northwest coast bordering on the  38 shores of the Pacific."  39  40 And stating about the -- the trade there having  41 been previously under the hands of American and  42 Russian traders.  43 And page 441 is a letter from the committee of the  44 Aborignees Protection Society to Labouchere, chairman  45 of this committee.  It is dated the 18th of May, 1857.  46 And without going into it in any great detail, it is  47 critical of the way in which the Hudson's Bay Company 21526  Documents read in  by Mr. Goldie  1 has discharged its obligations.  It remarks upon the  2 destructive influence of liquor.  3 And on the last page in the last paragraph, about  4 midway down the last paragraph.  After describing the  5 situation that has existed in the territories over  6 which the Hudson's Bay Company had control, this  7 question is put:  8  9 "And yet what has been the result?"  10  11 Does Your Lordship see that?  12 THE COURT: Not yet.  Yes, I have it, thank you.  13 MR. GOLDIE:  14  15 "The system has made the company prosperous and  16 powerful, has made the Indian a slave, and his  17 country a desert.  He is at this day wandering  18 about his native land, without home or covering  19 as much a stranger to the blessings of  20 civilization as when the white man first landed  21 on his shores.  It is far from the intention of  22 the society to cast indiscriminte censure upon  23 the servants of the Hudson's Bay Company, many  24 of whom are without doubt benevolent and  25 humane, as well as enterprising and  26 intelligent.  But it must be obvious that their  27 character and habits, as well as the policies  28 of the Company, are alike unfavourable to that  29 progressive settlement and civilization of the  30 country which has been going on in so much a  31 remarkable a manner to the south of the British  32 and America boundary."  33  34 And that's the end of the part I wish to refer to.  35 And I simply note, My Lord, that at the time this  36 letter was being written, there was evidence --  37 evidence is already in of the warfare, which was  38 taking part in the Oregon territory south of the 49th  39 parallel.  40 My Lord, I tender that report as an exhibit.  41 THE REGISTRAR:  1183, My Lord.  42  43 (EXHIBIT 1183 - REPORT FROM THE SELECT  44 COMMITTEE ON THE HUDSON'S BAY COMPANY)  45  46 MR. GOLDIE:  The next volume I wish to refer to is entitled  47 "Colonial Documents General".  My Lord, I am tendering 21527  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  Documents read in  by Mr. Goldie  a single volume of documents entitled "Colonial  Documents General".  This is a list of documents which  I am not going to spend very much time on, but they  provide some necessary documentation in the case.  Under tab 1 I have placed the Colonial office  staff.  This is taken from the work that Professor  Hendrickson at the University of Victoria undertook,  and it provides Your Lordship with the identification  of Colonial office officials for various periods.  Under tab 2 is firstly a typed script, and  secondly a photocopy of the original document, which  is a commission -- a Magistrate's Commission issued to  officials of the Hudson's Bay Company as they were in  1837.  George Simpson, Alexander Christie, Murdoch  MacPherson, Peter Skene Ogden and James Douglas.  The  latter two, of course, are well-known names in the  history of New Caledonia.  And the recitation or the recital makes reference  to the Act which gave jurisdiction to the courts of  justice in the provinces of lower and upper Canada to  the trial and punishment of peoples who committed  crimes in what's sometimes been referred to as the  Indian territory.  And the commission authorizes these  people, who have been given the status described.  And  I am now over the page, My Lord, about midway down the  page beginning with the words:  "I do authorize and empower you ..."  THE COURT:  MR. GOLDIE:  Yes.  "The said George Simpson Alexander Christie,  Murdoch McPherson, Peter Skene Ogden and James  Douglas, wheresoever resident or being at the  time, to Act as Civil Magistrates and Justices  of the Peace for any of the Indian Territories  or parts of America not within the limits of  either of the said provinces of Upper or Lower  Canada or of any civil government of the United  States of America, as well as within the limits  of either of the said Provinces, either upon  information taken  ..."  Et cetera.  That gave them jurisdiction over what is now the 2152?  Documents read in  by Mr. Goldie  1 mainland of British Columbia.  2 Under tab 3 is the reports of the House of  3 Commons.  I should say a report from the Select  4 Committee on New Zealand of the House of Commons.  5 That is to say the Imperial House, United Kingdom  6 House of Commons ordered to be printed July 29th,  7 1844.  This report, My Lord, is referred to in Mr.  8 Barkley's letter to Mr. Douglas of December, 1849, in  9 which Douglas was instructed in his duties as agent of  10 the Hudson's Bay Company with respect to the  11 disposition of land and Vancouver's Island.  The  12 letter itself is in Dr. Lane's Exhibits 1039, tab 22.  13 THE COURT:  Just a moment.  Lane -- what was the reference  14 again?  15 MR. GOLDIE:  Exhibit 1039-22.  I have put — I have had a typed  16 script prepared.  17 THE COURT:  Yes.  18 MR. GOLDIE:  And I'll hand that up to Your Lordship, the one I  19 have.  Unfortunately I have marked up --  2 0 THE COURT:  And who is Barkley again?  21 MR. GOLDIE:  Barkley was the secretary of the Hudson's Bay  22 Company.  2 3 THE COURT:  Thank you.  24 MR. GOLDIE:  And he wrote Douglas in December of 1849, in which  25 he talks about the organization of the colony.  He  26 said -- I am quoting from my copy of the letter:  27  2 8 "You have in former communications been informed  29 of your appointment as agent of the Hudson's  30 Bay Company for the sale of land, et cetera, in  31 Vancouver's Island, and of the conditions of  32 which the company had resolved to dispose of  33 portions of land to settlers."  34  35 This, of course, is after the grant contained  36 in -- from the Crown to the Hudson's Bay Company of  37 the sale of Vancouver's Island.  38 Then subsequently in his letter he says this:  39  40 "A committee of the House of Commons, which sat  41 upon some claims of the New Zealand company,  42 reported in reference to native rights in  43 general that 'the uncivilized inhabitants of  44 any country have but a qualified dominion over  45 it, or a right of occupancy only, and that  46 until they established among themselves a  47 settled form of government, and subrogate the 21529  Documents read in  by Mr. Goldie  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  ground to their own uses by the cultivation of  it, they cannot grant to individuals not of  their own tribe any portion of it, for the  simple reason that they have not themselves any  individual property in it."  That was Barkley's letter, and the report that he  is referring to is what is under tab 3.  And the  membership of the committee, which is shown on page  Roman II, the committee itself is -- its report is  found beginning at Roman page III, and at the bottom  of that page Your Lordship will see the paragraph  beginning with the words:  "It appears to Your Committee  ..."  THE COURT: I'm sorry, where is that?  MR. GOLDIE: The bottom of page Roman III of the report.  THE COURT: Yes.  MR. GOLDIE: And it is the third page in.  THE COURT: Yes.  MR. GOLDIE: Your Lordship will see that.  " ... Committee that the difficulties now  experienced in New Zealand are mainly to be  attributed to the fact, that in the measures  which had been taken for establishing a British  Colony in these islands, those rules as to the  mode in which colonization ought to be  conducted, which have been drawn from reason  and from experience, have not been sufficiently  attended to."  And then there is a quotation from the Governor of  New South Wales, and his words are the words which  Barkley quotes to Douglas in his letter.  Your  Lordship sees the words --  "The first is, the uncivilized inhabitants of  any country have but a qualified dominion ..."  THE COURT:  Yes.  MR. GOLDIE:  Now, the Barkley quotation was much shorter than  the whole of the quotation that is given at the top of  page 4 from the governor's speech, but the third  principal referred to by the governor is this: 21530  Documents read in  by Mr. Goldie  1 "The third principle is that neither  2 individuals, nor bodies of men belonging to any  3 nation, can form colonies, except with the  4 consent, and under the direction and control of  5 their own government; and that from any  6 settlement which they may form without the  7 consent of their government, they may be  8 ousted.  This is simply to say as far as  9 English men are concerned, that colonies cannot  10                     be formed without the consent of the Crown."  11  12 Now, the problem in New Zealand arose out of the  13 fact that the New Zealand Company sought to establish  14 a colony without the consent of the Crown.  It entered  15 arrangements with the natives, which were difficult to  16 carry out, and the Crown had to send out -- ultimately  17 had to send out troops to take care of the people who  18 had gone out there in what the House of Commons  19 regarded as a breach of the proper policy.  2 0 And at -- the committee at page Roman V, My Lord, is  21 commenting on the Treaty of Waitangi, which to this  22 day is a matter or argument in New Zealand, and has  23 this to say about that treaty.  It's the second to  24 last paragraph about three quarters of the way down  25 the page beginning with the words:  26  27 "Your committee have observed ...."  28  2 9    THE COURT: Not yet.  30    MR. GOLDIE:  31  32 "Your committee have observed that the terms of  33 the treaty are ambiguous, and in the sense in  34 which they have been understood, have been  35 highly inconvenient, in this we refer  36 principally to the stipulations it contains  37 with respect to the right of property inland.  38 The information which has been laid before us  39 shows that these stipulations, and the  40 subsequent proceedings of the governor founded  41 upon them, have firmly established in the minds  42 of the natives notions, which they had then but  43 very recently been taught to entertain, of  44 their having a propriety title of great value  45 to land not actually occupied; and there is  46 every reason to believe that, if a decided  47 course had at that time been adopted, it would 21531  Documents read in  by Mr. Goldie  1 not have been difficult to have made the  2 natives understand that, while they were to be  3 secured in the undisturbed enjoyment of the  4 land they actually occupied, and of whatever  5 further quantity they might really want for  6 their own use, all the unoccupied territory of  7 the islands was to vest in the Crown by virtue  8 of the sovereignty that had been assumed."  9  10 And there is much more of a like character, My  11 Lord.  12 And over at page Roman Villi, the third  13 paragraph -- the last paragraph on that page:  14  15 "The observations already made will enable your  16 committee very briefly to express their opinion  17 on the question which has led to so much  18 discussion, as to whether the New Zealand  19 Company are entitled to call upon Her Majesty's  20 government to put them in possession of a large  21 extent of land, without reference to the  22 validity of their supposed purchases from the  23 natives.  If the view which we have taken of  24 the right of the Crown to the whole of the  25 unoccupied soil of New Zealand, and of the  26 nullity of all private purchases of land from  27 the natives, be a correct one; and that this  28 were also the view of the then Secretary of  29 State at the time that the arrangement with the  30 New Zealand Company was concluded; it follows,  31 as a matter of course, that by that arrangement  32 it must have been intended to give to the  33 Company a claim binding, in good faith, upon  34 the estate of the Crown to the number of acres  35 awarded to them by Mr. Pennington.  There was a  36 prior quasi arbitration and that this claim  37 could not in any way be affected by the  38 character of those supposed purchases from the  39 natives, which it was the very object of the  40 whole arrangement to set aside as altogether  41 null and invalid."  42  43 And then they go on to express about the error,  44 which the officers who held the government of New  45 Zealand, in not asserting the right of the Crown to  46 all the unoccupied soil of the island led to.  47 And over at page 11, My Lord.  This is the second 21532  Documents read in  by Mr. Goldie  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  complete paragraph beginning with the words:  "Your committee cannot offer these  recommendations."  And I am going to refer to about midway down  the -- that paragraph to the words:  "We also attach much importance"  THE COURT:  Yes.  MR. GOLDIE:  "... to the adoption of a good system of making  reserves of land for their benefit.  These  reserves ought in our opinion, to be of  moderate and interpersed with the lands  destined for the occupation of settlers; the  natives should be encouraged, themselves, to  occupy and to cultivate the land thus reserved  for their benefit, and only those parts of it  for which they might have no immediate occasion  should be allowed to be let on lease to  Europeans, the lease is being restricted to a  moderate term of years, and the rents so  obtained being considered as applicable for  their advantage."  I just note here, My Lord, that the terms on which  Governor Douglas intended to deal with the reserve in  Victoria, the Songies Indian Reserve, are very similar  to what I just read.  I have no further references in  that that I wish to make at this time.  Tab 4, a -- again this is background material, My  Lord, Pelly to Grey of the -- then the Secretary of  State for the colonies of September 7th, 1846.  Part  of this has been referred to in evidence, but I have  endeavoured to place in here the whole of the  background to the acquisition or the transfer of  Vancouver's Island to the Hudson's Bay Company.  And the minutes of the Colonial office officials  are fairly extensive, and I won't read those.  And then Blanchard's -- I'm sorry, Douglas to Grey of  the 15th of April, 1852 is set out here.  And again  the reference is made to the Songies Indians and the  Colonial office minutes on that, which are shown on  page 4. 21533  Documents read in  by Mr. Goldie  1 The next document under tab 5 is Pakington, who  2 was then Secretary of State for the colonies in 1852,  3 to Douglas of the 2nd of August of that year.  4 THE COURT: That's tab?  5 MR. GOLDIE:  Tab 6, My Lord.  6 THE COURT:  Yes, that's tab 6.  Yes.  Thank you.  7 MR. GOLDIE:  And in this he expresses his opinion of the  8 firmness and good judgment shown by you in the affair  9 of the Songies Indians.  And I repeat, this is the way  10 in which the governor dealt with the desire on the  11 part of the legislative council of the colony of  12 Vancouver's Island to remove the Indian reserve of the  13 Songies, which was right adjacent to or virtually in  14 the middle of the settlement of Victoria, to remove  15 them, and Douglas was not going to do so without  16 ensuring that they were compensated for the loss of  17 their property.  18 Tab 8 is Douglas to Newcastle of the 28th of July,  19 1853, again dealing with matters related to the native  20 peoples, and to which is attached the colonial office  21 minutes.  At page 5 under paragraph 2, Mr. Merivale,  22 who is a permanent under secretary at the time, was  23 from 1854 until 1859.  His minute is number 2.  24  25 "That on the 13th of January, 1854 the Crown  26 will be at liberty to resume the grant of the  27 island if the conditions have not been complied  2 8 with."  29  30 And then he goes on to say:  31  32 "For my own part I believe that whatever their  33 demerits, the Co. have one merit, viz. that of  34 systematic dealing with the natives; instead of  35 the mere Caprice of ordinary settlers: and that  36 to this is owing the general absence, in their  37 territories, of anything like the fearful  38 massacres and fightings of which we receive  39 occasional accounts from the American side of  40 the frontier."  41  42 Tab 9.  Douglas of the 24th of October, 1853.  And  43 I needn't read anything further on that.  The same  44 thing with Douglas of 9th of January, 1857.  These are  45 all Vancouver's Island.  46 Douglas under 11, Douglas to Labouchere of the  47 29th of February, 1857.  This one I have referred to. 21534  Documents read in  by Mr. Goldie  1 And this gets into the first intimation of gold on the  2 mainland.  And it notes that -- at the bottom of page  3 2, Mr. Merivale's minute to the Secretary of State,  4 beginning with the paragraph:  5  6 "But I must refer to a former minute on 8657."  7  8 THE COURT:  Oh, yes.  Thank you.  9 MR. GOLDIE:  10  11 "There is no legal authority in northwestern  12 America, accept, for certain purposes, the  13 courts of justice in Canada."  14  15 And tab 12 is Douglas to Labouchere of the 6th of  16 April, 1858, again on the finding of gold in the  17 mainland.  And the minutes of the colonial office  18 indicate a concern about matters which are developing  19 in the mainland, and the last minute states:  20  21 "I must leave this to Mr. Merivale's judgment,  22 being unable to deal with it now, and an early  23 answer being required.  The most essential part  24 is to see if the Lieut. Gov. Commission cannot  25 be granted, the present legal obstacles  26 notwithstanding."  27  28 That was a proposal to grant him a subsidiary  29 commission over the mainland.  30 Then the debates of -- under tab 13 relate to the Bill  31 of 1858 which created the colony of British Columbia,  32 and I don't propose dealing with those now.  33 The same thing under tab 14, 15.  34 16 is an extract from a despatch which is already  35 in the papers relating in part one.  36 17 is extracts from the journals of the  37 legislatures of Vancouver Island and British Columbia.  38 Your Lordship bearing in mind that there was no  39 legislative council on the mainland until 1864.  And  40 it provides the background to the Songies Indian  41 settlement that I have already referred to.  42 19 relates to the same thing.  43 20 is the same thing.  44 21 is from the despatch, which is in papers  45 relating -- or papers relative, but it is in here  46 because of the colonial office minutes.  47 22 is also in the same category.  This was the 21535  Documents read in  by Mr. Goldie  1 despatch in which -- to which Douglas responded to a  2 suggestion that he comment on the possible  3 administration of the northwest -- the northwestern  4 territories, otherwise generally regarded as Rupert's  5 Land.  6 23 is the Emigration Board to the colonial office  7 commenting on Douglas's proposal to reserve lands for  8 the benefit of Indians, and it too is in here for  9 the -- for the Emigration Board's letter and the  10 colonial office minutes.  11 24 is in papers relating I read this morning.  12 25 is in the same category.  13 26 is Newcastle to Douglas of the 15th of June,  14 1863 with respect to ultimately the union of Vancouver  15 Island and British Columbia, something which didn't  16 take place until 1866.  It earmarks in paragraph 11  17 the direction to Douglas to form a legislative  18 council, and thus puts an end to the time when Douglas  19 operated both as his own legislature and as his own  2 0 government.  21 27 are journals of the legislative council, and is  22 the first session of the British mainland, the  23 legislative council, and sets forth Douglas's speech,  24 and virtually the last of his career, because he was  25 shortly to be followed by Seymour.  26 At 28 is the legislative council with the address  27 to the governor.  28 29 is further resolutions of the -- of that first  29 legislative council, and it notes -- I note in page  30 237 the resolution moved by Mr. Orr.  It's the first  31 one on the page:  32  33 "The union of British Columbia with Vancouver  34 Island would be detrimental to the best  35 interests of both."  36  37 And then that of Mr. Smith:  38  39 "That whereas certain reservations in the valley  40 of Chilwayhook and elsewhere throughout the  41 Colony are being made for the benefit of  42 Indians, and whereas said reservations are  43 considered to be unnecessarily large (10 acres  44 to each family), and in several instances  45 including lands already pre-empted and improved  46 by actual settlers, thereby seriously  47 interfering with the development of the 21536  Documents read in  by Mr. Goldie  1 agricultural resources of the Colony; be it  2 resolved that his excellency be respectfully  3 requested to give the matter his consideration  4 at as early a date as convenient, in order to  5 avoid difficulties between the settlers and  6 Indians."  7  8 And so on.  9  10 Tab 30 is further extracts of the journals.  That  11 of the 9th of May, 1864, and by this time the governor  12 was Mr. -- the governor was Mr. Seymour.  13 This, My Lord, happens to be a -- also here for the  14 disposition made of a petition of Mr. Newton, and this  15 is referred to at the bottom of page ten:  16  17 "... setting forth that the extension of the  18 Indian Reserves adjoining his Pre-emption at  19 Catsey, had been interfered with and overlapped  20 his land, and praying that he may be allowed to  21 continue in occupation, or that some  22 compensation be made.  23 The Council considered that the Indians  24 should be left in possession of the land, and  25 that Mr. Newton be requested to inform the  2 6 Government what expense he had been put to in  27 cultivating the land in question and what  28 compensation he would expect from Government."  29  30 And then from 31 on through 31, 32, 33, not 34 or  31 35, but 36, 37, 38, 39, 40, 41 and 42 are all  32 referable one way or the other to the so-called  33 massacre of Waddington and his party beyond Bute  34 Inlet.  35 34 is Seymour's despatch to Cardwell, recording  36 his attempt to identify himself and his office with  37 the interests of the native peoples, having regard to  38 the departure of Sir James Douglas, who had been known  39 by the Indians as a great chief, the principal  40 authority in this territory for upwards of 40 years.  41 And as a result of that an impression was allowed to  42 arise among them that their protector was withdrawn  43 and would have no successor.  44 35 is Seymour to the Colonial Secretary, or the  45 Secretary of State for the colonies of the 9th of  46 September, 1864, which refers to the murder of an  47 Indian Constable by the master and crew of a -- I 21537  Documents read in  by Mr. Goldie  1 believe identified later as an American sloop,  2 complete with the colonial office references.  3 Then I go down to 45.  This is Seymour to Cardwell  4 again.  This is of the 8th of May, 1865, in which the  5 chief of police, Mr. Brew, who was also a police  6 magistrate, refers to interfering with the way in  7 which the native people dealt with one another, and  8 his belief that it was time to interfere with customs  9 which resulted in loss of life.  10 46 is Seymour to Cardwell regarding the 24th of  11 May celebrations in Westminster.  12 Under 47 is Kennedy, who was the governor of  13 Vancouver's Island, dated the 4th of July, 1865, in  14 which he is talking about the desirability of  15 forbiding the sale of liquor on Vancouver's Island.  16 Douglas had, of course, long before done that on the  17 mainland.  18 48, acknowledgement of a despatch with respect to  19 the murder of the Indian Constable at Metlakatla.  20 49 refers to the despatch in which Mr. Brew's  21 views on interfering with Indian customs is approved.  22 50 is -- dealing with Newton's claim, and sets  23 forward the decision of Sir James Douglas and the fact  24 that Mr. Newton was hardly a struggling colonist.  He  25 was an employee of the Hudson's Bay Company.  26 51 is a further extract from the journals of the  27 colonial legislature, this time of Vancouver Island,  28 and introduce legislation which, as we will see, had  29 already been passed in the mainland colony.  30 In part, My Lord, some of this will be used to  31 demonstrate the difference between Vancouver's Island  32 and the mainland colony in respect of their laws.  33 Laws which affected the Indian peoples.  And to a  34 similar effect, or to a related effect there are  35 extracts under tab 53 from the journals.  36 54 is a despatch relating to Crown lands, which  37 will be dealt with elsewhere.  38 55 is an acknowledgement by Cardwell of a despatch  39 from Kennedy, stating that the Bill to amend the law  40 of Indian evidence, which had been thrown out by the  41 legislative assembly, that law had been passed in the  42 mainland and had been in effect for some time.  43 And after the union, the despatch under tab 56 is  44 that of Seymour to Carnarvon, Seymour in his capacity  45 as the governor of the United Colony, which says:  46  47 "I beg to state that I propose to make the 2153?  Documents read in  by Mr. Goldie  1 extension of the British Columbia Indian  2 Evidence Act over the whole Colony one of the  3 Government Measures of the approaching  4 session."  5  6 Under 57 is another extract from the journals.  5?  7 is the despatch from Seymour to Carnarvon of the 19th  8 of February, 1867, reporting on a petition in which  9 the Indians asked that the law which prohibits the  10 sale of sprituous liquors in their villages be not  11 repealed.  12  13 "I replied that the Liquor Law of the Mainland  14 should not only be maintained here but extend  15 over Vancouver Island.  16  17 I should say these Indians are from the mainland.  18  19 "Secondly the Indians pray that their Reserves  20 be not interfered with.  A resolution  21 requesting me to curtail such Reserves having  22 passed the Council.  A few of these Reserves  23 are doubtless too large, but they shall not be  24 reduced without my personal inspection."  25  26 And then he said in paragraph 4:  27  28 "I wish I could report matters, as regards the  29 Indian Population to be as satisfactory on  30 Vancouver Island as on the mainland.  The  31 council is at present, however, engaged in  32 extending the laws of British Columbia  33 affecting the natives over the whole Colony."  34  35 And then related despatch under 59, under 60, and  36 under 61 a further extract from the journals.  The  37 resolution that was proposed was related to the best  38 system of administering Indian affairs and managing  39 their reserves.  40 62, the death of Seymour, and a long minute  41 relating to that.  42 The proclamation under 63 of the coming into  43 effect of the Land Ordinance Act of 1870.  That's one  44 of the Calder documents, which I will refer to later.  45 Under 64 is Musgrave's despatch to Kimberley,  46 Musgrave having succeeded Seymour, and Kimberley then  47 being the Secretary of State to the colonies. 21539  Documents read in  by Mr. Goldie  1 65 is the letter from Duncan to Musgrave of  2 December the 16th, 1870.  And that, My Lord, is  3 related to the government reserve at Metlakatla.  And  4 I will be referring to that because of the fact that  5 Mr. Duncan in this makes no reference to Indian title,  6 and does make reference to the acquisition of land  7 outside a reserve by an Indian through pre-emption.  8 The memorandum of the governor with respect to  9 Duncan's letter is found under tab 66.  10 67 is the colonial secretary's letter to Duncan,  11 and I needn't read that.  12 Under 68 is Musgrave's letter of the 15th of  13 February, 1870, in response to Mr. Good, and:  14  15 "Questions affecting the Indian population and  16 to convey to you his excellency's thanks for  17 the trouble you have taken in the matter.  On  18 some of the points to which you refer, however,  19 your suggestions cannot be acted upon without  20 reversing the policy which has been pursued  21 hitherto of treating the Indians as British  22 subjects, under the same protection, entitled  23 to the same privileges, and incurring the same  24 liabilities as the white population."  25  26  27 THE COURT:  Where is that, please?  28 MR. GOLDIE:  That, My Lord, that I read from is the second page  29 in.  30 THE COURT:  Oh, yes.  31 MR. GOLDIE:  And it's about halfway down.  32 THE COURT:  Well, I wonder, is this — the first page doesn't  33 look like the beginning of the letter.  34 MR. GOLDIE:  No.  The letter begins — it's from the letter  35 book.  36 THE COURT:  I see.  37 MR. GOLDIE:  Does Your Lordship see the date, 15th of February,  38 1870?  3 9 THE COURT:  Yes.  40 MR. GOLDIE:  That's the beginning of the letter.  And the  41 addressee is on the fourth page.  The receiver and  42 John B. Good, Lytton, just below the signature of Mr.  43 Musgrave, and just below the statement by the governor  44 that:  45  46 "His excellency does not regard it as expedient  47 to constitute the clergy their official 21540  Documents read in  by Mr. Goldie  1 protectors."  2  3 Under 69 are journals.  The particular reference  4 in here being the 18th of March, 1871.  An offer was  5 made to conduct mail from the post office on Skeena  6 River to Germansen Creek for the sum of $125 round  7 trip, and the decision of the council not to establish  8 that kind of postal communication.  And then a  9 resolution with respect to a Bill for the prevention  10 of bulls and stallions running at large, and the  11 decision not to undertake that until adequate notice  12 had been given to the native population.  13 Under 70 and 71 are two documents of O'Reilly's,  14 which are Mr. Williams' collection of documents, My  15 Lord.  16 And then O'Reilly's under 73 and 74, another  17 document in Mr. Williams' collection, consisting of  18 O'Reilly's statement of the Indian reserves, which he  19 had marked off in the District of Omineca.  20 And then under -- I said 74.  I meant 73, My Lord.  21 Under 74 is an extract from a much longer document,  22 which I will come to in another collection.  It's a  23 confidential print of the colonial office entitled  24 "Correspondence Relative to the Present Position of  25 Her Majesty's Indian subjects in British Columbia",  26 dated May, 1875.  My Lord, when I was dealing with --  27 with exhibit -- the yellow book, Exhibit 1182, I said  28 that matters had reached such a stage in 1874 and 1875  29 between the Dominion and the Province that Lord  30 Dufferin had sent off to the Secretary of State for  31 the colonies a long despatch, which was very critical  32 of British Columbia, and to all intents and purposes  33 invoked or suggested that the Secretary of State  34 intervene and exercise his powers of arbitration under  35 Term 13 of the Terms of Union.  That print contains a  36 great deal of material, one of which was a letter that  37 Sir James Douglas, after he retired, wrote to the  38 Indian commissioner, Mr. Powell.  And the extract that  39 is under tab 74 here is -- starts with the letter from  40 Powell to Douglas dated the 9th of October, 1874:  41  42 "Sir, would you be good enough to inform me if  43 during the period of your governorship in  44 British Columbia, there is any particular basis  45 of acreage used in setting apart Indian  4 6 Reserves."  47 21541  Documents read in  by Mr. Goldie  1 And then he makes reference to a speech that  2 Douglas made in 1856.  3  4 "Douglas responded on the 14th of October 1874  5 by saying the question presented in your letter  6 of the 9th of October being limited to one  7 specific point, hardly affords breadth or scope  8 enough to admit of an explicit reply without  9 going more largely into the matter."  10  11 And then he says:  12  13 "To this inquiry I may briefly rejoin that, in  14 laying out Indian reserves, no specific number  15 of acres was insisted on.  The principle  16 followed in all cases was to leave the extent  17 and selection of the land entirely optional  18 with the Indians who were immediately  19 interested in the reserve; the surveying  20 officers having instructions to meet their  21 wishes in every particular, and to include in  22 each Reserve the permanent village sites, the  23 fishing stations and burial-grounds, cultivated  24 land, and all the favorite resorts of the  25 tribes, and, in short, to include every piece  26 of ground to which they had acquired an  27 equitable title through continuous occupation,  28 tillage, or or other investment of their  29 labour."  30  31 And so on.  And then he noted over the page that  32 the Indian reserves in the pastoral country east of  33 the cascades were only roughly traced out, and that --  34 well, he goes on to simply say that in his opinion the  35 matter gave satisfaction.  36 My Lord, I tender that as the next exhibit.  37 THE COURT:  Yes.  That will be?  38 THE REGISTRAR:  1184, My Lord.  3 9    THE COURT:  Yes.  40  41 (EXHIBIT NO. 1184 - COLONIAL DOCUMENTS  42 GENERAL - TABS 1 TO 74)  43  44 MR. GOLDIE:  My Lord, I might raise one point.  Whether it would  45 be necessary to make each document under the tabs as a  46 separate exhibit, or whether it would be satisfactory  47 to describe the document as its -- by its name, 21542  Documents read in  by Mr. Goldie  1 "Colonial Documents General", consisting of the  2 documents found under tabs 1 to 74, and as described  3 in the index.  4 THE COURT:  Well, I think that's adequate.  But do you have any  5 views, Ms. Russell or Mr. Guenther?  6 MS. RUSSELL: That's fine.  7 MR. GUENTHER:  Fine.  8 THE COURT:  Perhaps we should do the same thing for the other  9 ones.  10 MR. GOLDIE: The other ones didn't have too many tabs, My Lord.  11 THE COURT: All right.  12 MR. GOLDIE: But I got some coming up that do have.  13 THE COURT: All right.  Well, I'll leave that to counsel to  14 suggest what we should do when we reach that point.  15 Take the afternoon adjournment.  Thank you.  16 THE REGISTRAR:  Order in court.  Court stands adjourned for a  17 short recess.  18  19 (PROCEEDINGS ADJOURNED FOR RECESS)  20  21 I HEREBY CERTIFY THE FOREGOING TO BE  22 A TRUE AND ACCURATE TRANSCRIPT OF THE  23 PROCEEDINGS HEREIN TO THE BEST OF MY  24 SKILL AND ABILITY.  25  2 6    2 7 LORI OXLEY  2 8 OFFICIAL REPORTER  2 9 UNITED REPORTING SERVICE LTD.  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 21543  Documents read in  by Mr. Goldie  1 (PROCEEDINGS RESUMED AT 3:20)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord, I've handed up three volumes entitled  6 "Calder Proclamations; volume 1 containing numbers 1,  7 2, 4 to 9 of the Calder Proclamations, volume 2  8 containing --  9 THE COURT:  I'm sorry, you're ahead of me.  Volume 1 is again?  10 MR. GOLDIE:  1, 2, 4 to 9.  11 THE COURT:  That's out of 13, is it?  12 MR. GOLDIE:  Out of 13, my lord.  13 THE COURT:  Yes, all right.  Thank you.  14 MR. GOLDIE:  2 is 10 to 13, and volume 3 is dedicated to number  15 III alone.  16 THE COURT:  Yes, all right, thank you.  17 MR. GOLDIE:  As the index indicates, these are the Proclamations  18 and Ordinances of the Colony of British Columbia as  19 listed in Calder versus the Attorney General of  20 British Columbia, and I have put the trial citation,  21 because that's where they're first listed.  22 THE COURT:  Yes.  23 MR. GOLDIE:  These documents were referred -- these  24 Proclamations were referred to in the judgments of the  25 Supreme Court of Canada as indicating the nature of  26 the Crown's case.  Your lordship will recall that in  27 Calder aboriginal title was assumed to exist, and the  28 issue was whether it had been extinguished.  The  29 Crown's case was that these 13 enactments, taken  30 together, by necessary implication extinguished Indian  31 title.  Now, what was not before the court or any of  32 the courts in Calder was the exchange of despatches  33 between the colony and the Colonial office in London  34 and the minutes of the officials of the Colonial  35 office and what they did with the material.  Now, I  36 have already shown in the papers relative, which is  37 Exhibit 1142, that a number of these were laid before  38 Parliament in the period when Governor Douglas  39 exercised both legislative and executive powers.  It  40 will be submitted that when these enactments are  41 examined in the light of the despatches back and forth  42 and when the same examination is given a number of  43 others, which are, it will be submitted, of the same  44 or equal -- the same or in some cases greater  45 significance, that the policy reflected in these  46 enactments was not to recognize title, and it was  47 to -- it was, as the Governor stated it in 1861 to the 21544  Documents read in  by Mr. Goldie  1 Indians of Cayoosh, Lytton, and on the way from Lytton  2 to Rock Creek that I read to your lordship this  3 morning, there's some legal implications to the way in  4 which these despatches were treated.  All of them, of  5 course, were liable to disallowance, but what was not  6 before the court in Calder and which will now become  7 apparent to your lordship is not only the discussion  8 on examination which I have referred to, but also the  9 fact that the Queen's approval was conveyed in  10 virtually every case.  Most of these documents are  11 before the union of the two colonies, but some very  12 significant -- some of the balance are -- some of the  13 others very significantly are after the union of the  14 two colonies.  In the front of each volume again is  15 the collection made by Professor Hendrikson of the  16 Colonial office staff.  What I propose doing, my lord,  17 with few exceptions, is to indicate what will be found  18 under each tab, and I certainly am not going to repeat  19 everything, because a number of the documents that are  20 found under the prospective tabs are either parallel  21 to what is found in others or indeed is part of the  22 same set of documents which deal with several of the  23 Proclamations.  But looking under tab 1, just to give  24 your lordship an indication of how it's dealt with --  2 5 THE COURT:  Roman I?  26 MR. GOLDIE:  Roman I, yes.  The Roman numerals in the tabs  27 indicate the Proclamation number in the order that  28 they were dealt with in Calder, and under tab Roman  2 9 number is the index to the documents under that  30 particular tab.  So that under tab Arabic 1, and it  31 will be seen from that index that there are nine  32 volumes -- nine documents with relation to this  33 particular Proclamation.  The numbers start from 1  34 again under each of the Roman numeral tabs, indicating  35 which Proclamation is being dealt with.  So under --  36 THE COURT:  There are tabs 1 to 15 under Roman I, but only nine  37 in the index.  38 MR. GOLDIE:  I'm sorry, I have misled your lordship.  The tabs  39 are -- go sequentially from 1 straight through.  They  40 don't begin all over again, that's another set of  41 documents.  42 THE COURT:  Oh, yes, I'm sorry, you're quite right.  Tab Roman  43 II does follow tab 9, yes, all right.  44 MR. GOLDIE:  I misstated it because we changed the method of  45 dealing with it when we come to the counter-claim  46 documents.  So if I may start with the first  47 Proclamation.  Under tab 1 is the Proclamation having 21545  Documents read in  by Mr. Goldie  1 the Force of Law to enable the Governor of British  2 Columbia to convey Crown lands sold within the said  3 Colony.  It is dated the 2nd of December, 1858, and it  4 states:  5  6 "It is lawful for the Governor, for the time being  7 of the said Colony, by any instrument in print or  8 in writing, or partly in print and partly in  9 writing, under his hand and seal to grant to any  10 person or persons any land belonging to the Crown  11 in the said Colony."  12  13 And under tab 2 is an extract from Exhibit 1142, which  14 is dated -- is the Colonial Secretary's despatch to  15 Governor Douglas of August the 14th, 1858 inquiring  16 about the disposition of Crown lands.  Under tab 3 is  17 another extract of a despatch -- another extract of  18 Exhibit 1142, consisting of Douglas' despatch of  19 November 29th, 1858, stating that the first  20 disposition of Crown lands will take place at Fort  21 Langley.  Tab 4 is the Proclamation itself in the --  22 formulated before parliament together with the note  23 from Judge Begbie, in which he stated that a  24 Proclamation was required to be issued.  Under tab  25 6 --  26 THE COURT:  I'm sorry, were you not there talking about tab 4?  27 MR. GOLDIE:  Tab 4 was the -- was the -- yes, I'm sorry, your  28 lordship is right.  Tab 5 is the extract conveying --  29 I'm sorry -- is the despatch conveying the  30 Proclamation to the Colonial office dated December  31 4th, 1858.  Tab 6 is the Queen's approval, and it is  32 the despatch of March the 19th, 1859:  33  34 "I have to acknowledge the receipt of your  35 Despatch, No. 42, of the 4th of December last,  36 transmitting copies of two Proclamations issued by  37 you, the first conferring upon yourself and your  38 successors the power to convey Crown lands within  39 the Colony of British Columbia, the second --"  40  41 Et cetera.  42  43 "I have laid these Proclamations before the  44 Queen, and I am commanded to acquaint you that Her  45 Majesty has been pleased to approve them."  46  47 Tab 7 is the laying of the table at the House of 21546  Documents read in  by Mr. Goldie  1 Commons of the 12th of August 1859.  It is the second  2 column.  Midway down the page:  3  4 "Mr. Chichester Fortesque presented, by Her  5 Majesty's command, Farther Papers relative to the  6 affairs of British Columbia:  Part 2."  7  8 And then about three paragraphs below that:  9  10 "Mr. Chichester Fortesque also presented presented,  11 pursuant to the directions of an Act of  12 Parliament - Copies of Proclamations issued by the  13 Governor of British Columbia, between the 8th May  14 1858 and 14th February 1859."  15  16 Tab 8 is the same thing with respect to the House of  17 Lords.  And the two documents are -- I mean the  18 references to the upper left-hand corner of column 1,  19 first two paragraphs.  Tab 9 is the material prepared  20 by the Colonial office, copies of Proclamations issued  21 by the Governor of British Columbia presented to both  22 Houses of Parliament.  And the next page is -- has  23 been described numbers 1 to 10, and the one that is in  24 question here is number -- number 8.  Then the same  25 process is repeated with respect to Calder number 2.  26 The Proclamation is under tab 10, the date of the  27 Proclamation being the -- February 14th, 1859, and the  28 paragraph 1:  29  30 "All the land in British Columbia and all the  31 Mines and Minerals therein, belong to the Crown in  32 fee."  33  34 Paragraph 3:  35  36 "It shall also be competent to the Executive at any  37 time to reserve such portions of the unoccupied  38 Crown lands, and for such purposes as the  39 Executive shall deem advisable."  40  41 "Except as aforesaid, all the land in British  42 Columbia will be exposed in lots for sale."  43  44 And then tab 11 is, we follow the same procedure, the  45 transmittal by Douglas to Lytton of February 19th,  46 1859 of this particular Proclamation.  Tab 12, the  47 acknowledgement of Lytton to Douglas of May 7th, and 21547  Documents read in  by Mr. Goldie  1 his comments thereon.  He found one aspect of it to be  2 objectionable.  13 is the submission to Parliament.  3 14 is -- 13 and 14 is the submission to Parliament,  4 the House of Commons and the House of Lords  5 respectively.  15 is the return prepared by the  6 Colonial office, the particular Proclamation being  7 number 10 "Relative to Land Sales".  And Calder number  8 3 is -- the documents are in volume 3 and I'll deal  9 with them separately.  Number 4, the Proclamation is  10 under tab 16.  The date is January 20th, 1860, and the  11 preamble recites, and I quote:  12  13 "And whereas, it is expedient that town lots,  14 suburban lots, and surveyed agricultural lands in  15 British Columbia, which have been, and which  16 hereafter may be offered for sale, at public  17 auction, and remain unsold, shall be sold by  18 private contract."  19  20 Reference is made to town and suburban lots in "a.",  21 the Proclamation, and "b.":  22  23 "Agricultural lands surveyed by the Government  24 Surveyor, which may, or shall have been offered  25 for sale at public auction, and remain unsold,  26 at ten shillings per acre, payable one half in  27 cash at the time of sale, and the other half at  28 the expiration of two years from such sale."  29  30 17 is the -- is the transmittal despatch with Douglas'  31 comments.  18 is the submission to Parliament, and 19  32 to the House of Lords.  20 is the return of the  33 Colonial office of the three Proclamations stated  34 there.  It's number 18, which is here, and then we  35 find the Proclamation as made.  And under --  36 THE COURT:  Do I understand that the Proclamation is issued  37 before all this happens in London, or is it --  38 MR. GOLDIE:  Yes.  And then if it's — well, there are two ways  39 of doing it.  One, they can pass -- when I say "they",  40 I'm referring to the Colonial authorities, whether  41 it's Douglas or the legislative assembly.  42 THE COURT:  Yes.  43 MR. GOLDIE:  They can enact an Ordinance which states it shall  44 not come into effect until the Queen's pleasure is  4 5 known.  4 6 THE COURT:  All right.  47 MR. GOLDIE:  And then that's one way of dealing with it.  The 2154?  Documents read in  by Mr. Goldie  1 other way they enact it, it comes into force, they  2 send it to London.  If it's not sanctioned, that's --  3 it's so notified and rights which have accrued  4 apparently are saved, but it becomes an a nullity  5 after that.  6 THE COURT:  All right.  7 MR. GOLDIE:  21 is — oh, there's a third alternative, I think  8 it occurs in one of them, where the Queen's sanction  9 is not given but the Colonial Secretary says the Act  10 is left to its operation.  Under tab 21 is the Queen's  11 approval of the 8th of May, 1860, a typescript, and  12 then following that is the original document.  Tab 22  13 and 23 is the parliamentary process laid before both  14 Houses of Parliament.  Tab V is the Act of 1861, which  15 is an act to -- is the -- is entitled the "Pre-emption  16 Amendment Act 1861, and it provides for the situation  17 that arises if the pre-emption is -- boundaries are  18 irregular in nature.  And in paragraph 8 states:  19  20 "The sworn Surveyor shall make an accurate survey  21 of the said land, and report thereupon to the  22 Chief Commissioner of Lands and Works, and the  23 Chief Commissioner of Lands and Works may, if the  24 title of the applicant be clear and undisputed,  25 receive payment for the same land, and a  26 conveyance may thereupon be issued to the  27 applicant."  28  29 My Lord, while this is one of the Calder document --  30 or one of the Calder Proclamations, it is part of a  31 larger land disposition history which is dealt with at  32 greater length in Calder 3.  25 is -- is the  33 transmittal despatch of the 23rd of April, 1861, and  34 you will see, my lord, on page 2, paragraph 4:  35  36 "The 'Pre-Emption Amendment Act 1861' has been  37 issued in consequence of Her Majesty's Sanction  38 of the Pre-emption Act of 1860; conveyed in your  39 Grace's despatch No. 64 of the 6th of December  40 1860; and embodies the amendments in the Act of  41 1860, suggested in Your Grace's despatch of the  42 7th of May 1860, with some further provisions in  43 respect to the form of land required under the  44 Pre-Emption Act of 1860."  45  46 And then we go down to tab 26, which is of the 30th of  47 December, 1861 and is the Queen's approval.  And it 21549  Documents read in  by Mr. Goldie  1 has the original documents there with the typescript.  2 27 to 28 and 29 are the parliamentary documents, that  3 is to say laying the Proclamations before parliament.  4 30 is -- is a despatch from -- is the report of the  5 Attorney General to the Colonial Secretary on February  6 28th, 1862.  And that explains -- or his report on  7 this Proclamation is on the second page, and that  8 document is in its original form and there's a  9 typescript.  31 is the appendix to part 4 of Exhibit  10 1142, which refers to number IV, the Pre-emption  11 Amendment Act, as one of those laid before Parliament.  12 Tab VI is the Country Land Act of 1861, and that  13 repeals the earlier provisions setting a price of  14 surveyed agricultural lands of 10 shillings per acre  15 and settles the new price of four shillings and two  16 pence.  The tab 33 is the transmittal, and on page 2  17 is the Governor's explanation at paragraph 3.  Your  18 lordship will see that on page 3 is typescript of the  19 Colonial office minutes, and there is a reference  20 there to the fact that the report of the local  21 Attorney General has not yet arrived, and making  22 reference to the -- making reference to the fact that  23 the first Act referred to is to be referred to the  24 Board of Trade.  And again, we'll see more of that  25 when we come to Calder 3.  Under tab 34 is the Queen's  26 approval of a number of Ordinances, number 2 of which  27 is the Country Land Act 1861.  35, 36, 37 -- I'm  28 sorry -- yes, 35, 36, 37 are all parliamentary  29 documents.  38 is the Attorney General's report, and  30 his report is exceedingly terse.  It states:  31  32 "This Act merely carries out the instructions  33 received by His Excellency the Governor  34 authorizing him to lower the price of land to  35 4s/2d."  36  37 39 is the laying before Parliament of the part 4 of  38 the -- of the papers of 1142.  That's the bottom of  39 paragraph -- of the first column.  41 is the same  40 thing with respect to the House of Lords.  Under 41 is  41 the appendix to part 4, which has as number 3 the  42 Country Land Act 1861.  Now, that's the general  43 pattern, my lord, and I think I needn't deal in detail  44 with the Pre-emption Purchase Act of 1861, which is  45 tab Roman VII.  The same procedure is followed.  And I  46 won't refer to the individual tabs, they all follow  47 the same process.  Tab VIII is the Pre-emption 21550  Documents read in  by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  Consolidation Act of 1861, and this too is dealt with  more fully in the Calder number 3, which is they  repealed it.  The relevant transmittal documents and  reports extend down to tab 61, which is the appendix  to part IV of Exhibit 1142.  Calder IX is the Mining  District Act, and no related documents can be found  with respect to that, it seems to have dropped  between -- dropped somewhere in the archives, I should  say.  The Proclamation alone is under tab 62.  Then  I'll deal with —  COURT:  Do you want that book marked as a --  GOLDIE:  Yes.  I tender that, my lord as --  COURT:  1185.  GOLDIE:  Exhibit 1185.  COURT:  Tabs 1 to 39, is it?  GOLDIE:  Well, it actually runs from tabs 1 to 62.  COURT:  Yes.  GOLDIE:  As described in the index.  COURT:  Yes, all right.  (EXHIBIT 1185  1-62)  Calder Proclamations  Vol.1 Tabs  MR. GOLDIE:  Now, turning to volume 2, this carries us a little  further on in time, my lord.  The Calder X is the Land  Ordinance of 1865, which was enacted after the  mainland colony had achieved a legislative council and  after Seymour had become Governor.  And of course the  requirement that the papers be laid before Parliament  was no longer in effect.  The Proclamation itself is  under tab 63.  Paragraph 1 states that:  "The Proclamation issued on the 14th of February,  1859" --  And that's Calder 2:  "except the portion thereof after clause 9, which  refers to the Capital of British Columbia, the  Mining District Act 1863" —  That's Calder 9:  "and the Pre-emption Consolidation Act 1861" --  Which is Calder 8: 21551  Documents read in  by Mr. Goldie  1 "Are hereby repealed, saving of existing rights."  2  3 The declaration that:  4  5 "All the lands in British Columbia, and all the  6 mines and minerals therein, not otherwise lawfully  7 appropriated belong to the Crown in fee."  8  9 is repeated.  Clause 12:  10  11 "From and after the day hereof British subjects,  12 and aliens who shall take the oath of allegiance  13 to Her Majesty, Her heirs and successors, may  14 require the right to pre-empt and hold in fee  15 simple unoccupied and unsurveyed and unreserved  16 Crown lands not being the site of an existent or  17 proposed town, or auriferous land available for  18 gold or silver mining purposes, or an Indian  19 reserve or settlement, under the following  20 conditions."  21  22 I draw your lordship's attention to the word  23 "unsurveyed" in that, because that consideration is an  24 important factor in the Calder 3 history.  64 is the  25 Attorney General's report to the Colonial Secretary.  26 The report is -- deals with the Land Ordinance, Mr.  27 Crease being the Attorney General at that time.  65 is  28 the transmittal despatch.  66 is the minutes -- or I'm  29 sorry, is the report of the Emigration Board.  67 is  30 the -- is the Queen's approval.  68 -- I'm sorry, 68  31 is Calder 11.  32 THE COURT:  Yes.  33 MR. GOLDIE:  Which is the Pre-emption Ordinance of 1866.  It  34 provides that companies, aborigines --  35 THE COURT:  Where are you reading from?  36 MR. GOLDIE:  I'm reading from the section 1 of the Proclamation  37 itself, my lord, under tab 68.  38 THE COURT:  Yes, all right.  39 MR. GOLDIE:  States that:  40  41 "The right conferred under clause 12 of the Land  42 Ordinance, 1865" —  43  44 To which I referred:  45  46 "Shall not (without the special permission thereto  47 of the Governor first had in writing) extend to or 21552  Documents read in  by Mr. Goldie  1 be deemed to have been conferred on Companies  2 whether Chartered, Incorporated, or otherwise, or,  3 without the permission aforesaid, to or on any of  4 the Aborigines of the Colony or the territories  5 neighbouring thereto."  6  7 And tab 69 is the Attorney General's report to the  8 Colonial -- to the Governor, and the first paragraph  9 he refers to why the question of companies is dealt  10 with.  Then at the bottom of the page he begins:  11  12 "The question of Indians pre-empting is a still  13 more serious one.  Already large reserves have  14 been made for them in various parts of the  15 country, inordinately so - many consider,  16 certainly much beyond their actual or probable  17 requirements for any agricultural purpose.  18 Were they allowed in addition to the existing  19 Indian Reserves, to pre-empt 160 acres each and  20 buy as much adjacent land as they chose,  21 they would become ready tools in the hands of  22 designing men who upon any rush for the limited  23 quantity of land in the Colony available for  24 settlement would either shut out all together or  25 levy black mail upon incoming bone fide settlers.  26 Indeed, the process has already begun; and unless  27 stopped in time with a race so tenacious of their  28 rights as the native tribes, much ill blood and  29 perhaps danger to the peace of the community will  30 result.  31 Individual cases of fitness of Indians for  32 pre-emption privileges, such as that of St. Paul  33 at Kamloops do and will occur and it is hoped  34 increase.  For all such the Governor's permission  35 forms a ready means of obtaining the desired end."  36  37 Then the transmittal despatch is under tab 70.  Then  38 the reference to the -- the Emigration Board's  39 comment, and at the top of page 2 it is stated:  40  41 "I have to report that I am aware of no objection  42 to the Ordinance, and I would therefore recommend  43 that it should be left to its operation."  44  45 72 is the Queen's confirmation and allowance of the  46 Proclamation.  Calder 12 is the Pre-emption Payment  47 Ordinance of 1869, and this is of course after the 21553  Documents read in  by Mr. Goldie  1 union of the two colonies, and it follows the same  2 pattern that is -- that I've been describing:  The  3 Attorney General's report, the transmittal despatch,  4 the Emigration Board's report, the Queen's  5 confirmation and allowance under tab 77, and under  6 tab -- under tab 78 is a despatch from the Governor,  7 Mr. Musgrave, commenting upon a suggestion made by the  8 Emigration Board.  9 THE COURT:  What is the role of the Emigration Board in all  10 this?  11 MR. GOLDIE:  Well, my lord, they -- it is an official body, as  12 far as I can make out, which existed to encourage  13 emigration to British colonies, and it was the office  14 to which prospective immigrants were directed when  15 they inquired about conditions of settlement.  But  16 wherever the Colonial office thought that there was  17 some aspect of settlement involved they refer it to  18 the Emigration Board.  19 THE COURT:  All right, thank you.  20 MR. GOLDIE:  Calder 13 is under tab 80, an Ordinance to amend  21 and consolidate the laws affecting Crown lands in  22 British Columbia.  Now, that document, my lord, is one  23 of -- one of three which were passed in and about June  24 of 1870.  It repeals in section 2 a whole series of  25 Ordinances, most of which we have looked at before.  26 The first one is Calder 2, the second is Calder 3, the  27 third is Calder 4, the Pre-emption Amendment Act of  28 1861 is Calder 5, the Country Land Act 1861 is Calder  29 6, the Pre-Emption Purchase Act 1861 is Calder 7, the  30 Pre-emption Consolidation Act 1861 is Calder 8, the  31 Mining District Act 1863 is 9, the Land Ordinance is  32 10, Pre-emption Ordinance is 11, the Pre-Emption  33 Payment Ordinance 1869 is 12.  And as I say, it was  34 one of three major acts.  Mr. Crease's report to the  35 Governor is under tab 81, and he states that:  36  37 "It is the first local law proposing to extend one  38 uniform or rather general Crown Land system over  39 the entire Colony."  40  41 That's the last line under page 2 and the first two  42 under page 3.  And he continues:  43  44 "Hitherto two different modes of dealing with Crown  45 Lands have prevailed in the Mainland and the  46 Island."  47 21554  Documents read in  by Mr. Goldie  1 And he goes on to describe those at some length.  And  2 under tab 82 is a further report of the Attorney  3 General of May the 11th, 1870 in which he refers to  4 three Acts.  He says:  5  6 "I have the honor to point the attention of Her  7 Majesty's government to an important measure  8 passed during the recent session of the  9 Legislature of this Colony.  10 'An ordinance to assimilate the Law relating  11 to Transfer of Real Estate" —  12  13 Et cetera.  14  15 "It forms a fitting sequel to two other Bills of  16 the same Session -- the Crown Grants Ordinance  17 1870 and Land Ordinance 1870 - which have already  18 been the subject of observation from this  19 Department.  20 The above three Acts taken together complete a  21 Group of Measures regulating the Clearing,  22 Acquisition, and Registration of Title to Real  23 Estate which it is not too much to say will  24 make a favorable mark in the Local Legislative  25 history, and be more and more appreciated as time  26 and experience disclose more of their beneficial  27 operation upon the Land Titles of the Colony.  28 These three measures are so intimately associated  29 together that a Report upon any one would be  30 incomplete without something more than a passing  31 reference to the others."  32  33 And his report follows, and it goes on for some 36  34 pages in the typescript and substantially more in the  35 original form.  I'm not going to make any reference to  36 it here.  Under tab 83 is the transmittal to the -- to  37 the Colonial office.  And the Emigration Board's  38 report of the 27th of August and which makes reference  39 to both the Attorney General's report and to the  40 legislation itself, and I'll come back to that when I  41 deal with Calder 3.  Tab 85 is the Queen's  42 confirmation.  Tab 86 is the Proclamation in the  43 Colony that the Queen is pleased to confirm and allow  44 the said Ordinance, and he proclaimed the confirmation  45 and allowance of the Land Ordinance 1870.  That was, I  46 think, my lord, the one with the -- one of the two  47 with the suspending clause.  That brings me to 21555  Documents read in  by Mr. Goldie  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  Calder -- well --  THE COURT:  I think we'll adjourn if it's convenient.  Should  this book now --  MR. GOLDIE:  May I tender that as an exhibit, my lord?  THE COURT:  It will be 1186, tabs 1 to —  MR. GOLDIE:  63 to 86.  THE COURT:  Oh, I'm sorry.  Oh, these run consecutively.  MR. GOLDIE:  Yes, they do.  THE COURT:  So that will be tabs 63 to 86.  MR. GOLDIE:  Yes.  THE COURT:  All right, Mr. Goldie.  (EXHIBIT 1186 - Calder Proclamations - Vol. 2 Tabs  63-86)  MR. GOLDIE:  And can we reserve 1187, my lord, for Calder 3,  because Dr. Robinson will be called tomorrow.  THE COURT:  Yes.  Just a moment, please.  Yes, all right.  We'll  adjourn now until ten o'clock tomorrow morning.  THE REGISTRAR:  Order in court. Court is adjourned until ten  o'clock tommorrow morning.  (PROCEEDINGS ADJOURNED AT 4:05)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability  Graham D. Parker  Official Reporter.  United Reporting Service Ltd.


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