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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-10-06] British Columbia. Supreme Court Oct 6, 1989

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 20451  Submissions  1 VANCOUVER, B.C.  2 October 6, 1989  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 6th day of October, 1989.  In the  6 matter of Delgamuukw versus Her Majesty the Queen, at  7 bar, my lord.  I remind you, sir, you are still under  8 oath, and would you state your name for the record,  9 please?  10 A   Frank Murray Greenwood.  11 MR. GRANT:  Before my friend proceeds, my lord, I had a couple  12 of matters that I wish to raise with your lordship.  13 First of all, I thought, given that you met this  14 person and spent a day with him, you would want to  15 know that yesterday Mr. Stanley Williams was involved  16 in a traffic accident and he died at 4:00 p.m.  17 yesterday afternoon.  18 THE COURT:  Well, I'm most disturbed to hear that, and I hope  19 that you will convey my regrets and sympathy to his  2 0 family.  21 MR. GRANT:  I certainly will, my lord.  I appreciate those  22 comments.  23 MR. GOLDIE:  I would like to be associated with that, my lord.  24 A number of my colleagues had occasion to meet Mr.  2 5 Williams.  2 6 THE COURT:  Yes.  27 MS. RUSSELL:  And I would like to give the sympathies of the  2 8 Federal Government.  29 THE COURT:  Did it happen in Smithers or —  30 MR. GRANT:  It happened in Hazelton, and he was -- I was only  31 with him last week, and he was in an accident.  32 Apparently he was conscious and everything was fine,  33 and while they were taking X-rays two and half hours  34 later he died.  They're not certain yet whether it was  35 internal bleeding or a heart attack as a result of his  36 injuries.  37 THE COURT:  I'm sorry.  38 MR. GRANT:  The second matter I wish to advise your lordship of  39 is it relates to scheduling.  And firstly, with  40 respect to your memorandum of yesterday relating to  41 the legal argument, as far as plaintiffs' counsel is  42 concerned, we have no difficulties with any of it.  We  43 would like to reserve and consider only one part, but  44 we don't have to deal with it now, and that is a  45 consideration of our reply to the defendants, the  46 length of that reply, and the place of that reply.  47 But we don't need to speak to that now.  Those are the 20452  Submissions  1 only two things we want to think about.  2 THE COURT:  All right.  3 MR. GRANT:  But other than that, your timetable, as far as the  4 plaintiffs is concerned, is satisfactory and we feel  5 we can meet that schedule.  The other matter is --  6 THE COURT:  I don't know if the other counsel want to —  7 MS. RUSSELL:  Well, my lord, I wanted to defer further on  8 discussion on scheduling until Monday.  We have no  9 instructions, and counsel are in Ottawa.  10 MR. GRANT:   The other matter, and I felt — I think Monday will  11 be a holiday, but my friend can deal with it next  12 week, and I will be corresponding, there is more  13 imminent scheduling.  And firstly, with respect to Mr.  14 Goldie's proposal on Monday, I reviewed this with all  15 plaintiffs' counsel involved, and there was one change  16 that we're having difficulty with, and that is that  17 until Monday, and I confirmed this by letter with Mr.  18 Goldie on September 19th, the order of the witnesses  19 was that after Dr. Greenwood would be Mr. David  20 Williams, and after Mr. Williams would be Mr. Magwood,  21 and after Mr. Magwood would be Dr. Robinson.  22 Plaintiffs' counsel have organized ourselves in terms  23 of the cross-examination in that order, and it's going  24 to be difficult for us to have Mr. Magwood and Mr.  25 Williams switch places.  It's quite problematic from  26 how we've organized the preparation of these  27 witnesses.  Now, if that for some reason Mr. Williams  28 is unavailable -- well, if Dr. Greenwood is finished  29 by next Thursday morning and if Mr. Williams is  30 unavailable in the morning, and that's the reason for  31 Mr. Magwood to come in, then of course my friend has  32 indicated he would -- he does want to read in  33 documents, but the order of these witnesses is causing  34 us some concern.  The first time we really were  35 apprised of that was on Monday of that switch in  36 order.  And I would be asking my friend to maintain  37 the order that -- from July right through to October  38 2nd we had maintained, because we certainly organized  39 counsel that way.  And I met with counsel last night  40 about seeing if we could be -- it's fairly problematic  41 for us, there are other matters.  I will be  42 corresponding with my friend with the Provincial  43 Crown.  And the final scheduling matter that has come  44 to my attention, which is, I dare say, my lord,  45 probably the first time in the case, I wanted to  46 confirm this, is the week of November 13th.  As you  47 know, the Federal Crown has proposed to commence on 20453  Submissions  1 November 8th, which is a Wednesday, and then go  2 through for I believe two and a half weeks and then  3 one week out of court.  I don't think this has  4 happened before, but every plaintiffs' counsel is --  5 had scheduled, through inadvertence, it just didn't  6 connect, in other matters in the week of November the  7 13th.  And so what we would ask for the consideration  8 of my friends and the court, if the Federal schedule  9 could be as follows:  November 8th to the 10th as they  10 have proposed, take the down week of November 13th and  11 then sit on the week of November 20th to 24th and  12 November 27th to December 1st.  And if they're  13 completed except for out-of-court matters the week of  14 I believe it's December --  15 THE COURT:  4th.  16 MR. GRANT:  4th would be — would deal with their out-of-court  17 matters.  In other words, instead of having the off  18 week the week of November 20th, having it the week of  19 November 13th -- I'm not certain -- as I say, I met  20 with all plaintiffs' counsel last night to see if  21 there was any way around this and we wanted to avoid  22 this request, but it seems that we are all -- for  23 example, myself, there is a sitting -- a special  24 sitting of the Supreme Court Justice coming to  25 Smithers for a special sitting that's been scheduled  26 for some period of time in that week, and this was a  27 conflict that we didn't all appreciate.  So that I  28 would ask if that switch could be made without too  29 much difficulty to counsel for Canada, and of course  30 they may not want to speak to it today, but at least  31 they now know the problem, but I wanted -- the reason,  32 notwithstanding Mr. Macaulay and Miss Koenigsberg's  33 absence, today I wanted to advise your lordship as  34 soon as it became clear that we were in a dilemna so  35 you --  36 THE COURT:  You appreciate the week of November 14th is a  37 four-day week.  3 8 MR. GRANT  3 9 THE COURT  4 0 MR. GRANT  41 THE COURT  Yes.  14th to 20th is a four-day week.  Yes.  All right.  42 MS. RUSSELL:  My lord, this of course is news to us.  However, I  43 would certainly raise it with Miss Koenigsberg and Mr.  44 Macaulay.  I can't say anything at the moment.  It  45 would have been nice to know a little in advance, but  46 we'll deal with it as best we can, thank you.  47 MR. GRANT:  This was — the fact is we could not get out — this 20454  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 conundrum only crystalized last night though, so  2 that's why I'm raising it at this first opportunity.  3 THE COURT:  All right, thank you.  Mr. Goldie.  4 MR. GOLDIE:  My lord, with respect to Mr. Williams and Mr.  5 Magwood, I'm not quite sure what my friends want.  6 They are witnesses of very unequal length.  Mr.  7 Magwood, who's slated for approximately half a day --  8 is the request that Mr. Magwood be deferred until  9 after Mr. Williams; is that the request?  10 MR. GRANT:  Yes, that's correct.  We would ask that it would be  11 Dr. Greenwood, Mr. Williams, and Mr. Magwood, and Dr.  12 Robinson, which is the order that my friends had  13 proposed and the order under which we operated until  14 Monday.  15 MR. GOLDIE:  Well, my lord, the order was changed because we've  16 lost considerable time.  Both the witnesses are from  17 out of town, and counsel have had to rearrange their  18 affairs to meet these matters.  I will consider it.  19 THE COURT:  All right.  20 MR. GRANT:  Yes.  The dilemma is that we — counsel are  21 organized as to the witnesses and by the schedule, and  22 it's rather late for us to switch.  We can't really  23 switch counsel around on those two witnesses now.  24 THE COURT:  All right, thank you.  25 MR. GOLDIE:  26 Q   My lord, I don't propose saying anything with respect  27 to your lordship's schedule, that is a matter for  28 something to be dealt with a little later on.  Dr.  29 Greenwood, at the conclusion of your evidence  30 yesterday you had just finished reading from a  31 document at one of Knox's memorandum -- memoranda, and  32 I think that you had read from internal page 32 under  33 tab 48.  And you had told his lordship who Mr. Knox  34 was, and previous to this is there any indication  35 of -- I think you told us that Knox had submitted  36 these memoranda to Lord Bute?  37 A   Submitted the first three that I mentioned.  38 Q   Yes?  39 A   Not this manuscript memorandum.  40 Q   That went directly to Lord Shelburne, did it?  41 A   That's correct.  42 Q   All right, thank you.  Is there any indication that  43 Lord Bute agreed with any of the recommendations that  44 Knox made in his first three memoranda?  45 A  Well, there is a document written by William Knox  46 entitled "Extra-Official State Papers", London, 1789.  47 Q   Yes? 20455  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  A  2  Q  3  A  4  5  MR.  RUSH:  6  MR.  GOLDIE  7  Q  8  9  10  A  11  12  13  14  15  16  17  MR.  GOLDIE  18  THE  COURT:  19  20  A  21  22  THE  COURT:  23  A  24  25  26  27  28  29  30  MR.  GOLDIE  31  Q  32  A  33  Q  34  35  A  36  Q  37  i  38  39  40  A  41  42  Q  43  A  44  45  46  47  Volume 2, page 29.  And you have examined that?  I have examined that, and Knox at a later point in  time recalled this, and I'll quote from that document.  Where is the document?  It's not -- he's quoting from it.  We can, I think,  provide you with a copy of it.  I don't have it in the  book at this point.  Quote:  "It appeared to him", and it's referring  there, my lord, I believe, to Bute:  "It appeared to him to be of much greater  importance to bring our colonies into order, than  to plant new ones."  :  All right.  Now, I would like to go on to the --  Sorry, I think I should get a little detail on that  than to -- what is the citation for that?  It's something William Knox recalled in later life, my  lord.  Yes?  And he published essentially papers and recollections  of his period as an official, and he brought them out  under the title of "Extra-Official State Papers", and  that was published in London in 1789, and I was  quoting from volume 2 page 29, in which he recalled in  later life that Bute had said "Bring our colonies into  order rather than start new ones".  And that was in relation to these recommendations?  In relation to these memoranda.  All right.  Now, I want to go to the document that is  under tab 52.  Yes.  And before I ask you -- well, perhaps you might  describe to his lordship what that is, and what its  significance is, and place it in the chronology of the  time?  I will.  This is tab 52, my lord.  Now, the document  I'm quoting from --  Well, tell his lordship what it is?  Oh, it's John Pownall's sketch of a report.  It is in  fact the first draft of the June 8th report of the  Board of Trade.  That will become evident as we go  through it.  But I might note here that in terms of  style, this document is addressed throughout at the 20456  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 beginning and throughout to His Majesty, so that it is  2 a draft report rather than a mere sort of set of  3 recommendations by Pownall.  This was drafted either  4 in May or early June of 1763.  The original is found  5 in the Shelburne papers, volume 49.  6 Q   Well, that -- that's evident from footnote 52 --  7 footnote 52?  8 A  My footnote 52, yes.  9 Q   All right.  That's the source?  10 A   In the W.L. Clements Library in Ann Arbour.  11 Q   Yes.  12 A   There's a copy of the original in the Shelburne Papers  13 in the National Archives of Canada.  I have not had  14 the fortune to look at the original, but I have looked  15 at the copy in NAC.  The copy I used was a printed  16 copy published by R.A. Humphreys.  17 Q   That's stated in footnote 52?  18 A   That's stated in footnote 52.  Do you want me to go  19 through?  20 Q   No.  We're going to furnish his Lordship with a copy  21 of footnote 52.  22 A   The printed copy is the one I used here, and it  23 appears at internal note 258 of tab 52.  24 Q   As you pointed out, Mr. Pownall is the secretary of  25 the Board of Trade?  26 A   Yes.  27 Q   This is his draft?  28 A   This is his draft report, which is referred to by  29 scholars as the sketch, and I use that term, just the  30 "Sketch".  31 Q   And are there sources of information which allow you  32 to determine when the members of the Board of Trade  33 had Lord Egremont's letter, which we've looked at,  34 before them?  35 A   Yes.  Do you wish me to explain?  36 Q   Just give us the date?  37 A   Right.  Took into consideration the letter of Lord  38 Egremont on May 6th, 1763.  39 Q   And the source of that is the Journal of the Board of  40 Trade?  41 A   Journal of the Board of Trade for that date.  42 Q   Which you have identified in your footnote 50?  43 A   Correct.  44 Q   Yes, thank you.  45 A  And on May 30th the Board again took the Secretary of  46 State's letter, made a consideration, and at that time  47 agreed to draw up a response.  That again is from the 20457  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  2  3  Q  4  5  ]  6  7  A  8  Q  9  10  11  12  i  13  A   ]  14  15  16  Q  17  A  18  19  20  Q  21  22  A  23  Q  24  A  25  ]  26  MR.  GOLDIE  27  MR.  RUSH:  28  A  29  MR.  GOLDIE  30  Q  31  A  32  33  34  35  36  37  THE  COURT:  38  A  39  40  MR.  GOLDIE  41  Q  42  A  43  Q  44  A  45  46  1  47  THE  COURT:  Journals of the Board of Trade under the date May  30th.  Thank you.  Now, am I to understand that the sketch  which has been the subject matter of discussion by  many scholars is confined to the matter of colonies in  North America and the Carribean?  Yes.  All right.  Would you draw his lordship's attention to  the parts which you've considered relevant at this  point and indicate to his lordship the relationship  between the sketch which is now before us and the  document which you referred to yesterday as the Hints?  Mm-hmm, yes.  Well, Pownall accepted the Hints  proposal that Florida should be divided, that's at  internal page 262.  Yes?  But he rejected the idea of two Canadas.  And I think  I might want to quote there, but I wish to delay that  for some minutes, if that it is appropriate.  All right.  That suggestion of two Canadas was in the  Hints?  It was in the Hints, and he had gone over the Hints.  And you tell us that he rejected that?  He rejected that.  I wish to delay explaining for a  minute.  :  That's all right, just go on.  Presumably that's in the sketch?  Yes.  I will be quoting from it.  Yes, it is .  Yes.  Pownall also proposed boundaries for Canada, and  I'm going to give them in general here, because it  seems likely that they will be treated in great detail  later in my evidence, but essentially he proposed that  the boundaries for Canada run from the St. John River  in Labrador.  In Labrador?  In Labrador, west to the Lake Nipissing area, and  south from the St. John River to the Gaspe peninsula.  You're speaking now of the boundaries of Quebec?  No.  It was called Canada at that time.  All right.  From there, that is from the Gaspe, the line would  follow the heights of land, southeast to Lake  Champlain, then along 45 north latitude.  Just a moment, please.  Then along 45? 2045?  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 A   45 north latitude, to the St. Lawrence, and finally  2 from there northwest to join the northern line near  3 Lake Nipissing.  That's on page 261, first full  4 paragraph.  5 MR. GOLDIE:  6 Q   Of the sketch?  7 A   Of the sketch, yes.  8 Q   Thank you.  9 A   I just want to give a general idea at this point.  10 Q   Yes?  11 A   Pownall —  12 Q   Well, don't use any words that imply a judgment,  13 please?  14 A  All right.  Pownall accepted the Hints' suggestion of  15 a western boundary at the rear of the older colonies.  16 Q   Yes?  17 A   He said that such a concept would serve the twin  18 purposes of protecting British mercantile interests  19 and pacifying the Indian frontier.  Now, I would like  20 to quote from internal page 259.  21 Q   Yes?  22 A   In the middle of the page.  23 Q   This is in the first complete paragraph?  24 A   First complete paragraph, beginning seven lines down.  25 Q   Yes?  26 A   Or eight lines down, I'm sorry:  27  28 "By a happy coincidence of circumstances, meet  29 together in the same point, and form an exact  30 union of system, for as in the one case the  31 permitting the colonies, for the present at least,  32 to extend their settlements beyond the heads and  33 sources of those rivers and waters which do  34 directly discharge themselves into the Atlantick  35 Ocean or Gulph of Mexico, would probably induce a  36 necessity for such remote settlements (out of the  37 reach of navigation) to engage in the production  38 and manufacture of those articles of necessary  39 consumption which they ought, upon every principle  40 of true policy, to take from the mother country,  41 and would also give rise to a separation of  42 interests and connections, in other points, not  43 consistent with that policy, so in the other case,  44 such settlements would not be made or colonizing  45 allowed without a manifest breach of our general  46 engagements with the Indians which would naturally  47 excite in them a jealousy and disgust that might 20459  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 prove of fatal consequence."  2  3 Q   Thank you.  Now, is there any -- the western boundary  4 of settlement then is indicated in that paragraph from  5 which you've just read?  6 A   I believe the boundary of settlement would be found on  7 internal page 260.  8 Q   All right.  9 A  And I will quote there.  Internal page 260, first  10 paragraph, line 4, and this is really his definition  11 or recommendation of the reserve.  12 Q   Yes.  Before you read that, may I refer you to page  13 259?  14 A   Yes.  15 Q   The last paragraph where he starts off "Upon this  16 ground therefore, and upon these facts and  17 principles", and that is the introduction to the  18 boundary, is it?  19 A   Yes.  20 Q   All right.  Now, would you please read what you were  21 going to refer to?  22 A   Yes.  You see, this was his projected Indian reserve:  23  24 "All the country line between the ridge of the  25 Apalachian Mountains and the river Mississippi as  26 low down to the Gulf of Mexico as the settlements  27 and claims of the Indians extend, as also all the  28 country lying around the Great Lakes, as far as  29 the heads of every river or water that falls into  30 them, should be considered as lands belonging to  31 the Indians, the dominion of which to be protected  32 for them by forts and military establishments in  33 proper places, and with full liberty to all  34 Your Majesty's subjects in general to trade with  35 the said Indians upon some general plan and under  36 proper regulation and restrictions."  37  38 Q   And you have identified the -- this as having at least  39 some relationship with the Hints, the document you  40 referred to yesterday?  41 A   Yes.  But in the Hints there was no specific boundary  42 laid down the concept of a reserve, you know, it's  43 parrallel in the sketch, but the Hints did not lay  44 down a boundary.  But I should point out that Pownall  45 had some exceptions to this Apalachian line as a  46 settlement boundary, and perhaps I should explain  47 those. 20460  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q   Yes?  2 A   The quotation here is again from page 260, first full  3 paragraph, third line, and this is where he's  4 outlining exceptions that he thinks have to be made to  5 the Apalachian settlement line:  6  7 "The Creeks, Cherokees and Catabaws have claims on  8 this side of the mountains and the Six Nations  9 also upon the Susquehanna, which it would be  10 unjust to violate, so on the other hand some  11 settlements have actually been made under the  12 Government of Virginia; beyond the great  13 mountains in the forks of the Ohio, between the  14 main branch of that river and the great Conoway  15 River, which do not yet interfere with any claims  16 of the Indians and which it would be equally  17 unjust and impolitic to break up and destroy."  18  19 So he had three exceptions to the projected boundary  20 line of settlement along the Apalachians.  21 Q   Perhaps you might explain the significance of that in  22 a little greater detail, doctor.  Does the reference  23 to the Government of Virginia indicate that it had a  24 political presence beyond the Apalachians?  25 A   Yes.  The colony of course extended -- you know, its  26 boundaries extended beyond the Apalachian Mountains,  27 and some years before the Royal Proclamation, the Ohio  28 Company of Virginia had been granted lands beyond the  29 Apalachians by the Government of Virginia.  30 MR. GOLDIE:  All right.  Now, one other matter which is  31 indicated in the -- indicated in the sketch -- I'm  32 sorry, the sketch, yes.  33 THE COURT:  Are you leaving that?  34 MR. GOLDIE:  No — oh, well, I'm leaving that paragraph.  35 THE COURT:  All right.  What do I understand by — what is meant  36 by the Conoway River?  37 A   It's one of the tributaries of the Ohio, my lord.  38 THE COURT:  And what do you understand is the forks of the Ohio?  39 A   I understand by it was where the Conoway and the Ohio  4 0 meet.  41 THE COURT:  I see.  So you think that "forks" there refers to  42 the Ohio and the Conoway?  43 A   I believe it does.  44 MR. GOLDIE:  45 Q   Is there any reference in the sketch to the question  46 of trading?  47 A   Of trade? 20461  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q   Yes.  Or is that contained in the first reference that  2 you gave us on page 260 in the first paragraph, and  3 the words:  4  5 "Full liberty to all Your Majesty's subjects in  6 general to trade with the said Indians upon some  7 general plan and under proper regulations and  8 restrictions."  9  10 A   Yes.  I think that's the only reference I can  11 remember.  12 Q   Thank you.  That's page 260 in the first paragraph.  13 Now, I think you may have given the page number, but  14 the paragraph relating to the rejection of the two  15 governments in Canada --  16 A   Yes.  17 Q   -- is indicated on page 261 on the second to last  18 paragraph?  19 A   Yes, that's correct.  2 0 Q   And I refer you to the words, and I quote:  21  22 "It seems by a paper transmitted to us with the  23 Earl of Egremont's letter."  24  25 And pausing there, can you identify the paper that is?  26 A   That would be the "Hints" by Ellis.  27 Q   All right.  And that is -- what follows there that  28 constitutes Mr. Pownall's rejection of the idea of the  2 9 two governments?  30 A   It that is correct, and also later on in that  31 paragraph a rejection of the idea of an extended  32 Canada or a Canada equivalent in boundaries to that of  33 the French.  And should I read that?  34 Q   No, that's all right.  As long as his lordship has the  35 reference.  Now, the -- can you, from reference to any  36 source that you have examined, take us one step  37 further in the chronological sequence towards the next  38 document; that is to say the disposition of Mr.  39 Pownall's sketch, is there any indication in the  40 documents what happened following it?  41 A  Well, not documents that I have looked at, but  42 Humphreys himself, having studied the originals in the  43 Shelburne papers, concluded that Pownall was set to  44 work enlarging the draft, because the draft, the  45 sketch, did not detail the advantages of the sessions,  46 and that had been specifically asked for by the Earl  47 of Egremont.  So the sketch was obviously incomplete, 20462  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 and he was asked, according to Humphreys, to enlarge  2 upon the sketch and to outline the advantages, and in  3 that he had the help of Morris Morgann, that's with  4 two N's, Morris Morgann, who was Shelburne's private  5 secretary and also had the assistance of Shelburne  6 himself in enlarging the sketch.  7 Q   Now, the source of your information in respect of that  8 is -- the secondary source of that you've identified  9 as Mr. Humphreys and is found fully referred to in  10 footnote 52 on page 46?  11 A   Correct.  12 Q   Yes, all right.  Now, does that bring us then to  13 the -- as a result of the efforts of Mr. Pownall and  14 Mr. Morgann, does that bring us to the Board of  15 Trade's report of the 8th of June?  16 A   Yes, with perhaps one other document to be mentioned.  17 There was a new draft made with marginal corrections  18 and additions.  19 Q   Yes?  20 A  And it was dated 8th of June, 1763, and that was the  21 one that was transcribed in clean copy for the king  22 and the Earl of Egremont.  23 Q   And that is in fact the Board of Trade's report?  24 A  Well, the clean copy thereof would be, yes.  25 Q   Yes?  26 A   But as -- if you read the marginal corrections and the  27 text, it is identical with the clean copy.  2 8 Q   All right.  Now, is that the document that we find  29 under tab 58?  30 A   Yes.  That is the clean copy of the original mentioned  31 there.  32 Q   Before I go on with that, am I correct in my  33 understanding that the references to Humphreys that  34 you have reference to which provide the information  35 about Pownall, Morgann and Morgann's position as  36 private secretary and the assistant of Lord Shelburne  37 himself?  38 A   Yes.  39 Q   Those references to Humphreys are found in footnotes  40 55 and 56?  41 A   Yes.  42 Q   And the draft to which you refer is -- the source of  43 that is found -- is identified in footnote 57?  44 A   Yes.  45 Q   All right.  Now, that brings us to what was  46 transmitted to the king?  4 7 A  Mm-hmm. 20463  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q   On the same day as the draft, namely June the 8th,  2 1763, and that's under tab 58.  In general terms, this  3 is a document that runs a number of pages.  The source  4 of this is Shortt and Doughty's Constitutional  5 Document as indicated in footnote 58?  6 A   Yes.  And I mention here in this case, as with all the  7 cases, dealing with the correspondence between the  8 Board of Trade and the Secretary of State I consulted  9 the original documents in the archives in the Public  10 Record Office and compared the printed copy in Shortt  11 and Doughty to make sure there were no errors of any  12 significance.  And so in this case, as with the  13 Egremont letter and all the rest of the correspondence  14 between the Board and the Secretary of State, dealing  15 with the policies that would be announced in the  16 Proclamation I compared the originals with the printed  17 copies.  18 Q   Well now, there are a lot of annotations and  19 underlinings on the document that's under tab 58.  I  20 take it those are not part of the originals?  21 A   No.  They are not.  22 Q   Now, the -- can you summarize this report, and then  23 we'll refer to particular parts of it?  24 A  Well, it advocated three new Colonies on the mainland,  25 East and West Florida and Quebec.  It gave boundaries  26 for those Colonies, it recommended that in no case  27 should there be assemblies immediately, that this was  28 inappropriate for Quebec because the population --  29 sorry -- to Canada, because the population was Roman  30 Catholic, and they were of course excluded from the  31 political system, and that there was almost no  32 population, European population, in the Floridas,  33 therefore assemblies should be deferred to a much  34 later time, and the government should be by Governor  35 and counsel.  36 Q   Yes?  37 A   They recommended a reserve in accordance really with  38 the sketch, and they did not precisely define the  39 boundaries, but they advocated a reserve in which  40 there would be no settlements or land grants but there  41 would be free fur trading.  They also prefaced their  42 report, and I would like to mention that more  43 specifically later with a long section on advantages  44 that Britain might expect to realize from these new  45 sessions.  46 Q   Yeah.  Was there any reference to settlement?  47 A   Sorry? 20464  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  Q  2  A  3  Q  4  5  A  6  Q  7  8  i  9  A   ]  10  11  12  MR. RUSH:  13  A  14  MR. RUSH:  15  A  16  17  18  19  20  21  22  23  24  25  26  27  ]  28  29  30  31  Q  32  A  33  Q  34  35  36  37  38  A  39  Q  40  41  A   '  42  43  44  MR. RUSH:  45  46  MR. GOLDIE  47  Q  Any reference to settlement?  Yes.  There were several references to settlement.  I refer you in particular -- well, was there any  reference recommending western settlement?  No.  There was not.  And by reference to internal page 100, the last  paragraph, would you point out to his lordship the  direction of settlement which the report contemplated?  Mm-hmm, yes.  This comes at the -- towards the end of  this long session on "Advantages", which runs over  2,000 words.  Which page is this, please?  It's at the bottom of page 100.  Thank you.  And essentially what they're advocating is that  population movement should be channeled north and  south, north to Nova Scotia and Quebec and south to  Georgia, which would now be freed from incursions, et  cetera, from -- by Indians and by the Spanish in the  Floridas.  And this would reduce the pressure of  population in the middle colonies like the north.  And  the Board of Trade saw that that pressure of  population where the people could not farm, partly  because of a natural increase of population and partly  because of land speculation, would eventually result  in these people, non-farmers, going into  manufacturing, which it would not be to the benefit of  Britain, so that the north-south channeling would  reduce the temptation to introduce manufacturers in  the middle colonies.  All right.  Now --  And there's no mention at all of western expansion.  Yes.  And I think you stated -- you've already stated  that the Board obviously accepted the concept of an  Indian reserve or territory, or whatever you want to  call it, west of the Apalachians, and that would be  opened to trading, would it?  Yes, free trading, meaning non-monopolistic trading.  All right.  What about the form of government with  respect to the Indian territory; was that dealt with?  Well, it would be -- they recommended that it be under  the governance of the military, there would be no  civil government according to the rule.  I think the witness should refer us to passages if  he's going to summarize, he should at least --  Well, I'll ask him to do that.  Would you continue, 20465  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  2  A  3  Q  4  5  6  A  7  Q  8  A  9  10  11  12  13  Q  14  15  16  17  18  A  19  Q  20  A  21  22  23  24  25  Q  26  27  A  28  Q  29  30  A  31  32  33  THE COURT  34  A  35  THE COURT  36  A  37  38  39  40  41  42  43  44  45  46  47  please?  They would be under the governance of military.  All right.  Could you assist my friend by directing  him to the portion that you're referring to?  I direct  you to page 102.  Yeah, 102.  At the top there?  You're referring to no regular civil government was to  be necessary for certain areas.  One of them was  Newfoundland, where only a temporary fishery was  intended, and the other would be what we would call  the reserve.  And as to that, the Board said, and I quote:  "Where no perpetual Residence or planting is  intended."  Correct.  Thank you.  And there would be free trade with the Indians.  Also,  that the Indians would be under the protection of the  military, who would establish various posts and forts  in the Indian country to protect trade and the good  treatment of the Indians.  Yes.  Now, the Board transmitted to Lord Egremont a  map, as I understand it, and I refer you to page 103?  Yes.  Would you read to his lordship those references that  we find there?  Yes.  This is -- this is a very similar paragraph  appears in the sketch.  In this report on page 103 the  map reference reads as follows --  :  Where is it, please?  Page 103.  :  Yes?  Towards the bottom:  In order however that Your Majesty may judge with  the greater precision of the Limits of Canada as  above described, and also of those We shall  propose for Florida, and of the country we think  right to be left as Indian territory, We humbly  beg leave to refer to the annex'd Chart in which  those Limits are particularly delineated and  of which Your Majesty will have a clearer  Conception than can be conveyed by descriptive  words alone." 20466  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 MR. GOLDIE:  2 Q   Now, Dr. Greenwood, my understanding is that you have  3 satisfied yourself from your researches that you have  4 identified the map that was laid before the king by  5 virtue of this report, and you have obtained certified  6 copies from the Public Records Office in London; is  7 that correct?  8 A   Public Record Office.  9 Q   Public Record Office in London?  10 A   Yes.  11 Q   And you will be going into the means by which you  12 satisfied yourself that was the original at a later  13 point, but I would ask you, if you would be good  14 enough, to identify the two maps or sections of maps  15 which I am putting before you.  16 A   Yes.  There is a photographic copy ordered by me of  17 the original map which was sent with the Board of  18 Trades' report to King George.  19 Q   Now, perhaps I will ask Miss Sigurdson to put the --  20 put that part which has the cartouche and shows the  21 eastern seaboard up on the trestle there.  Now, the  22 colouring that is represented in that photograph is  23 the colouring of the original that you examined?  24 A   Yes.  25 Q   Leaving the Board of Trades' report for the moment,  26 and taking the chronological sequence one step  27 further, I'm going to refer you to the document under  28 tab 61 and ask you to indicate how it came about and  29 what its significance is.  30 A   This is a document drafted by Henry Ellis for Lord  31 Egremont, and Ellis went through the report and asked  32 himself where in the report differed from Hints and he  33 found no differences he could not live with, and in  34 the report that I was going to file I simply stated  35 that.  36 Q   The document at the first page is headed "Particulars,  37 wherein the report of the Board of Trade, differs from  38 the paper intituled - Hints relative to the Division  39 and government of our new acquisition in American."  40 And you've identified that author as Henry Ellis?  41 A   Yes.  42 Q   And document under tab 62, please.  43 A   These are remarks on the report of the Board of Trade  44 by Egremont, and the identifications in the cases of  45 all these particular documents, 61, footnote 62 and  46 63, essentially I rely on Jack Stagg's book.  47 Q   Did you examine the documents? 20467  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  A  2  3  4  Q  5  A  6  Q  7  8  9  10  A  11  12  13  14  MR.  RUSH:  15  MR.  GOLDIE  16  Q  17  18  A  19  20  21  22  Q  23  A  24  1  25  26  27  28  29  30  Q  31  32  33  A  34  MR.  GOLDIE  35  36  37  38  39  40  THE  COURT:  41  MR.  GOLDIE  42  Q  43  44  45  46  47  A  Yes, I examined the documents, but I relied on Stagg  because of his expertise with the handwriting of  Egremont.  In terms of the identification of the author?  Yes.  All right.  And we needn't dwell upon that, but  there -- is there anything of a major nature that the  Secretary of State had to contribute to the comments  on the report?  Yes.  He had many small comments, but the only one of  great significance that, for example, the only one he  convinced the cabinet of was that there was no civil  jurisdiction for the Indian country or the reserve.  Could you point that out, please?  Well, I would ask the witness to complete his answer,  and then he can point it out.  There is no civil jurisdiction given to the reserve,  and therefore the French might consider the Indian  reserve to be derelict lands, meaning lands that were  not effectively occupied.  Yes?  And he wanted to prevent this by -- he had two  different ideals.  First, he wanted the Canadian  governor to have his jurisdiction extended to the  entire reserve, and then at some point before July  8th, 1763 he thought it would be a good idea to have  the reserve come under the civil jurisdiction in the  south of West Florida and in the north of Canada.  The reference to derelict lands, I take it, is on the  second-to-last -- third-to-last page of the manuscript  under the heading page 23?  Yes.  At the third line in?  :  Yes.  Beginning with the words:  "It is apprehended that whatever is suggested by  the commander in chief" --  Then going over --  Sorry, I haven't found it yet.  It's the third page in, my lord, and the  identification is in the manuscript handwriting, the  last paragraph page 23, and then it starts in the text  with the words "It is apprehended".  Your lordship is  under tab 62?  Yes. 20468  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  THE  COURT:  2  MR.  GOLDIE  3  4  THE  COURT:  5  MR.  GOLDIE  6  7  THE  COURT:  8  MR.  RUSH:  9  THE  COURT:  10  11  A  12  MR.  GOLDIE  13  THE  COURT:  14  A  15  THE  COURT:  16  MR.  RUSH:  17  18  1  19  20  THE  COURT:  21  MR.  RUSH:  22  ]  23  24  MR.  GOLDIE  25  MR.  RUSH:  26  MR.  GOLDIE  27  28  29  30  A  31  MR.  RUSH:  32  MR.  GOLDIE  33  MR.  RUSH:  34  MR.  GOLDIE  35  Q  36  37  38  A  39  Q  40  A  41  42  43  44  Q  45  46  A  47  Q  Yes.  I think so.  :  Starting from the front, there is in the upper  right-hand corner a printed 67?  Oh, yes.  :  Now, two pages over -- the next page, I should say,  has the last paragraph headed --  Oh, yes, I have it.  The pages don't seem to follow in my version.  Well, there's no page 22.  Is he referring perhaps  to the report?  Yes.  :  Beg your pardon, my lord.  He's probably referring to the report?  Yes.  I would think so.  The pagination in the report?  No, my lord, I'm not referring to that, I'm referring  to that -- it seems that at the bottom of the page Mr.  Goldie is referring to the next following word ought  to be "ought", and it isn't.  All right.  And there appears that it doesn't follow from where  my friend is indicating, so we don't have the next  page in this tab.  :  All right.  At least it doesn't appear that way.  :  My friend is probably correct.  The page that I  was -- has the reference to derelict lands upon is the  one that has at the top of the page "or any other  impediment"?  Yes.  It looks like there's a page in between, my lord.  :  I agree.  I would like to have the page, if we can get it.  We'll look into that.  I think my friend has all of  these references.  Now, doctor, the matter was then  sent back to the Board of Trade?  No.  It was brought up before Cabinet.  I see, right.  And Cabinet agreed to the report of June 8th but  thought that there should be some civil jurisdiction  over the reserve.  The Cabinet was not clear just what  that should be, and Egremont wrote the Board again.  Now, that is your -- the source of your information  for that is indicated in your footnote 64?  Yes.  And the -- that was dealt with by the Cabinet and -- 20469  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 or in Cabinet, I should say, and what followed from  2 that?  3 A  Well, it dealt with the report of the Board of Trade,  4 and it dealt with Egremont's draft minute where he  5 suggested that the Indian reserve be under the  6 jurisdiction of both West Florida and Quebec.  It  7 resolved that the report should be approved,  8 recommended approval, in other words, to the king,  9 except that the Board should look into the question  10 again of jurisdiction over the Indian reserve, and  11 that was followed by a letter from Lord Egremont of  12 14th of July, 1763, essentially outlining the  13 Cabinet's decision.  14 Q   All right.  Now, under tab 63 is what you have  15 identified as the draft minute of Cabinet?  16 A   Yes.  17 Q   And you've already summarized what was done in  18 Cabinet?  19 A   Yes.  20 Q   And under tab 65 is the reproduction of Lord  21 Egremont's letter to the Board of Trade?  22 A   Yes.  23 Q   And the original of that is found in the sources  24 stated in your footnote 65; is that correct?  25 A   Yes.  26 Q   All right.  Are there any parts of the -- of Lord  27 Egremont's letter to the Board that you wish to bring  28 to his lordship's attention?  29 A  Well, I think possibly the boundaries he suggests for  30 the Canadian Governor's commission.  He's reverted to  31 his earlier idea that Canada should have jurisdiction.  32 Q   Yes?  33 A  And he outlines what the boundaries should be, unless  34 the Board of course can convince him otherwise.  35 Q   Yes?  36 A   That's found in the first paragraph on page 108.  37 Q   Yes?  38 A  And I'll quote:  "The King, therefore, is of the  39 opinion" --  4 0    THE COURT:  Just a minute.  41 MR. GOLDIE:  It's about midway down the paragraph, my lord.  42 THE COURT:  Yes.  I have it, thank you.  43 MR. GOLDIE:  44 Q   Yes, go on?  45 A  46 "The King, therefore, is of Opinion, that, in the  47 Commission for the Governor of Canada, all the 20470  F.M. Greenwood (for Province)  In chief 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.  MR.  MR.  THE  MR.  lakes, vis, Ontario, Erie, Huron, Michigan, and  Superior should be included, with all the  Country, as far North, and West, as the limits of  the Hudsons Bay Company and the Mississippi."  Q   And just preceding that in the same paragraph, is the  observation that the civil -- some sort of civil  government should take -- be provided in the --  A   In the reserve, otherwise foreign powers might take  these as derelict lands.  Q   Yes, thank you.  And then in the last paragraph on  that page, Lord Egremont states that, and I quote:  "Having thus informed your Lordships of the King's  intentions, with regard to the Extent of the  New Governments to be erected in North America; I  am now to repeat to you, that His Majesty entirely  concurs in your Lordships Idea, of not permitting,  for the present, any Grant of Lands, or New  Settlements, beyond the bounds proposed in your  report; And that all the Countries, beyond such  Bounds, be also, for the present, left unsettled,  for the Indian Tribes to hunt in; but open to a  free Trade for all in the Colonies."  COURT:  Where is that, please?  GOLDIE:  That is on the same page, my lord, but I have just  read from the first eight or nine lines of the last  paragraph.  COURT:  Okay.  GOLDIE:  Q   And Dr. Greenwood, have you been able to identify the  restrictions which are referred to in Lord Egremont's  letters in the Royal Proclamation?  When I say  "restrictions", I mean restrictions on the Governor's  granting?  A   Yes.  RUSH:  Excuse me, my lord, the question of restrictions is a  point my friend makes, it's a recommendation at this  point.  These are recommendations being advanced, and  this was the view of the author.  GOLDIE:  I think, my lord, this is the instruction to the  Board of Trade by Lord Egremont on behalf of the  Cabinet.  I think it goes a little further than -- I  don't agree with my friend's characterization.  COURT:  Yes, all right.  Well, there's an issue there.  GOLDIE: 20471  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q   Are you able to identify any of the geographic -- I'll  2 put it that way -- restrictions on the powers of  3 governors?  4 A   Yes.  5 Q   And identify them in the Royal Proclamation?  6 A   Yes.  I would say paragraphs T, U, V, W, X, and  7 possibly Y, but that would be debateable.  8 MR. GOLDIE:  Yes, all right.  And you used the paragraph numbers  9 there on the margin or a copy of the Royal  10 Proclamation you have been referring to.  Now, Dr.  11 Greenwood, how would you characterize this letter to  12 the Board of Trade, and by characterize it, as what  13 would you -- my friend referred to it as a  14 recommendation.  Would you agree with that?  15 MR. RUSH:  Well, my lord, characterizations aside, my friend  16 makes one point, I make another point.  17 THE COURT:  Yes.  18 MR. RUSH:  Surely, unless the witness is going to refer us to a  19 document, your lordship can look at the document and  20 deduce for yourself what the character is of it, so I  21 object to the witness characterizing a document as  22 such.  23 MR. GOLDIE:  Well, I had referred the witness, my lord, to the  24 document under tab 63, which was the draft minute for  25 the Cabinet, and he has described what the Cabinet has  26 done, and I want to have the witness characterize or  27 describe, identify what the document is under tab 65.  28 THE COURT:  Well, isn't it answered in the last paragraph?  29 MR. GOLDIE:  The last paragraph of the letter itself?  30 THE COURT:  Yes, on page 109?  31 MR. GOLDIE:  Beginning with the words "It is farther His  32 Majesty's Pleasure"?  33 THE COURT:  Yes.  34 MR. GOLDIE:  35 Q   I'm content with that, my lord.  Now, Dr. Greenwood,  36 chronologically speaking, what followed after that?  37 A   There was the Board's supplementary report.  38 Q   Yes.  And that's under tab?  39 A   Dated 5th of August.  40 Q   67, tab 67?  41 A   Tab 67, 5 August.  42 Q   And the source of that is found in your footnote 67?  43 A   Yes.  44 Q   All right.  And the document that is there is from  45 Shortt and Doughty's Constitutional Documents, is it?  46 A   Yes.  47 Q   All right.  And is this in response to Lord Egremont's 20472  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  2  A  3  Q  4  5  6  A  7  8  9  10  11  12  13  14  15  Q  16  17  A  18  Q  19  20  21  22  A  23  Q  24  25  A  26  Q  27  28  A  29  30  31  32  33  34  Q  35  A  36  37  38  39  Q  40  A  41  42    ]  MR. RUSH  43  A  44  45  46  47  letter?  Yes, it is.  And is -- perhaps you can simply summarize what the --  what the Board of Trade did in response to that  letter?  Well, firstly it rejected, with due deference of  course, it rejected Lord Egremont's strong suggestion  that there be a civil jurisdiction over the reserve,  and in particular that it should be Canada, and the  Board thought that if Canada were given jurisdiction  it would give the Canadien an unfair advantage in the  fur trade.  Also, that there would be continual  disputes between the Governor of Quebec -- or Canada,  I'm sorry, and the Commander-in-Chief.  Now, those are found in the first page of the document  at the bottom of the page?  Yes.  Three lines from the end of the first -- second  complete paragraph, beginning with the words "But at  the same time we beg leave to submit to Your Majesty  the following objections which have occurred to us"?  Yes.  And then follow the objections which you've just  referred to?  Yes.  All right.  And anything else of significance that you  wish to bring to his lordship's attention?  Well, the Board stated that they did not think any  delay in bringing the area under civil jurisdiction  would be a problem, because they thought that the  Indian reserve lands could not be considered derelict  while His Majesty's troops were in possession of all  the French forts of the -- that's on page 111.  Yes?  Then the report goes on, supplementary report goes on  to recommend the immediate issuance of a Proclamation  by the king dealing with Indian matters on the North  American frontier.  Yes?  And this was a justified -- they justified this  recommendation.  Where is that, please?  At the bottom of page 111, last full paragraph.  They  justified this recommendation on the basis of:  "On Account of the late Complaints of the Indians,  and the actual Disturbances in Consequence." 20473  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 And that refers to, I believe, the initial stages of  2 Pontiac's rebellion.  3 MR. GOLDIE:  4 Q   All right.  And you've noted that the recommendations,  5 you say, was that a Proclamation be immediately  6 issued?  7 A   Yes.  This changes the format at this point.  From  8 instructions in Egremont's letter of the 14th it's  9 assumed that the governors will be getting detailed  10 instructions on Indian policy on the boundaries of a  11 reserve.  Now, the format of bringing this into  12 operation has been changed to that of a Royal  13 Proclamation announcing it.  14 MR. GOLDIE:  All right.  And the — you made reference to the  15 quotation "actual disturbances" as being the first  16 indication of Pontiac's rebellion?  17 THE COURT:  What was the year of Pontiac's rebellion?  18 A   It's May 1763.  July gets very serious, but it looks  19 like the northwest is going to be taken out of the  20 British empire.  There's a British victory in August,  21 1763 that's quite significant, but the unrest goes on  22 until the autumn of 1764, when there are mopping up  23 operations by the British.  24 MR. GOLDIE:  25 Q   And you have identified other sources of information  26 with respect to Pontiac's rebellion in the London  27 Chronicle of the 16th of August?  28 A   Yes.  I haven't looked at that myself.  That's taken  29 from a --  30 Q   Secondary source?  31 A   Secondary source.  32 Q   And that's identified in your footnote 69?  33 A   69, yes.  34 Q   Yes?  35 A   But that reference is used by numerous scholars.  36 Q   Then you have further references in your footnotes 70  37 and 71?  38 A   Yes.  39 Q   To the actual events that you just referred to?  40 A   Yes.  These are letters that were coming to London  41 from North America on Pontiac's rebellion, and I cite  42 a letter from Amherst to Egremont dated the 27th of  43 June, 1763.  44 Q   And I think you told his lordship that you made an  45 estimate of the length of time that the mails were  46 taking to get to London?  47 A   That's — I don't know if I have, but the — I've 20474  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  2  3  4  ]  5  6  7  8  9  Q  10  A  11  12  Q  13  14  15  A  16  Q  17  18  A   ]  19  THE  COURT:  20  MR.  GOLDIE  21  22  THE  COURT:  23  MR.  GOLDIE  24  THE  COURT:  25  MR.  GOLDIE  26  Q  27  28  29  30  31  32  33  A  34  Q  35  A  36  MR.  GOLDIE  37  ]  38  39  40  THE  COURT:  41  MR.  GOLDIE  42  Q  43  44  A  45  46  1  47  studied the mail's time delay in the eighteenth  century, and the 1780's and the 90's, which I'm  familiar with more than this period, it took two  months approximately to go from Quebec to London, and  these letters would be coming often from the interior  of the continent.  And there's another letter I cite  too from Johnson, and those letters show that the  northwest is truly threatened.  And that's —  But they don't arrive in London until after the 5th of  August, or supplementary report obviously.  And the letter from Johnson is identified, the source  of the letter from Johnson is identified in your  footnote 71?  Yes.  Now, I want to move to the drafting of the Royal  Proclamation itself.  Mm-hmm.  These letters are not in the collection.  :  They're in the collection before your lordship, I'm  just identifying the source.  Were they Mr. Morrison's collection?  :  I don't recall those two letters, no.  All right, thank you.  And my friend confirms that.  I want to move to the  question of the -- of drafting of the Proclamation  itself, and there was a government reorganization at  that time, I believe, with which we might -- need not  take up the details, but one of the results was that  Lord Shelburne resigned and his place as First Lord of  Trade was taken by the First Earl of Hillsborough?  Yes.  And Lord Egremont died.  Egremont died, and he was replaced by?  Lord Halifax.  :  Lord Halifax, thank you.  And they then took up the  matter again, you identify in footnote 75 the source  of the concern that was expressed at the time with  respect --  Sorry, 75?  It's his footnote 75, my lord, I'm just identifying  the secondary source.  Footnote 75 is a primary source, and it's a letter  from the Earl of Sandwich, who was in the Cabinet,  dated to Lord Holland, dated 26th, September, 1763,  and I have -- I have taken that from -- 20475  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q   A secondary source?  2 A  A collection of letters.  3 Q   Is it not --  4 A   Yes, but the document itself is a primary source.  5 Q   All right, thank you.  Now, the supplementary report  6 of the Board was then you've identified that as having  7 been submitted to the Cabinet on September 16th?  8 A   Yes.  9 Q   And there was some objections taken, which you have  10 identified as in the source of which was identified in  11 your footnote 76?  12 A   Yes.  I don't understand the nature of the objections.  13 Q   All right.  The -- in the result the Board received  14 instructions to do what?  15 A   To draft a Proclamation.  This was the letter of  16 Halifax —  17 Q   Yes?  18 A   -- to the Board of Trade, 19th September, 1763, which  19 is tab 77.  20 MR. GOLDIE:  Yes.  That's in your lordship's book.  21 THE COURT:  Yes.  22 A  And this instructed them to issue or to draft a  23 Proclamation dealing with the reserve and adding in  24 other matters, such as establishing the boundaries for  25 the new colonies, prohibiting private purchases of  26 Indian lands, I mean making that explicit, right, and  27 a declaration of free trade with all the Indians under  28 a system of regulation.  So Halifax added a number of  29 subjects to be included in the Proclamation.  30 MR. GOLDIE:  31 Q   Yes.  And the Board did that, and you have been able  32 to identify from the documents that Mr. Pownall  33 provided the first drafts; is that correct?  34 A   Yes.  Pownall submitted the first draft on September  35 29th, 1763.  36 Q   Right.  37 A  And that's from the Board of Trade Journals.  38 Q   That's in your footnote 78 and 79?  39 A   Yeah, 78 and 79.  40 Q   Right.  And then the -- you've been able to establish  41 that the Attorney General was asked for his opinion?  42 A   Yes.  The Board of Trade asked the Attorney General of  43 Great Britain, Charles Yorke for his opinion whether  44 it, that is the draft proclamation, whether it is  45 conformable to law and the general form and tenure of  46 Proclamations.  47 Q   And the Attorney General -- 20476  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  A  2  Q  3  4  A  5  6  7  8  9  10  11  12  13  14  15  16  Q  17  18  A  19  20  Q  21  A  22  Q  23  24  25  A  26  27  i  28  ]  29  30  31  32  MR.  RUSH:  33  MR.  GOLDIE  34  35  36  37  THE  COURT:  38  1  39  A  40  41  THE  COURT:  42  43  A  44  45  46  47  MR.  GOLDIE  And that's from the Board of Trade Journal.  -- responded with his opinion, and that's under tab  80, is it?  Yes.  He responded two days later on October 3rd,  1763, that's tab 80.  And that includes the entire  response, and I might read it because it's so short:  "In compliance with the desire of your lordship's I  have perused and considered the enclosed draft  of a proclamation, and am of the opinion that it  contains nothing contrary to law, and that it is  properly prepared in form."  Now, that's taken from the Colonial Office Series,  323, in the Public Record Office.  It's an original.  Thank you.  And were there any -- and you have  identified subsequent changes to the draft?  Yes.  The changes that were made to the initial draft  of the 29th, yes, I have.  Yes.  And under tab 83?  Yes.  Do we have the draft with the changes, and have you  been able to satisfy yourself with respect to the  authorship of the changes?  Yes.  I've examined that at the Public Record Office,  it is in the Colonial office 324 series.  It is the  draft Proclamation and it contains emendations in the  margins in the hands of John Pownall and Charles  Yorke.  Now, for Charles Yorke I did a handwriting  comparison, and the very distinctive way in which he  wrote certain letters leads me to conclude --  Well, I must object to that.  :  Well, he has made a comparison, and surely he is  entitled to indicate to your lordship whether the --  it's accepted or not depends upon the validity of what  he's done, but these are things that he's done.  Are these things that legal historians and persons  doing historical research commonly do?  Not commonly, but from time to time in any, you know,  fairly lengthy career you have to do it, but --  Are the documents in from which you've made the  comparisons here?  Yes.  There's the Yorke letter, which I just mentioned  a short moment ago, his signature, for example, that's  tab 80, and then of course the emendations themselves,  I mean in hand.  :  And can you point out to any of those that you have 20477  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 reference under the -- in the document under tab 83?  2 THE COURT:  Well, maybe we can take the break, the adjournment  3 while he looks at that.  4 MR. GOLDIE:  Thank you, my lord.  5 THE REGISTRAR:  Order in court.  Court stands adjourned for a  6 short recess.  7  8 (MORNING RECESS TAKEN AT 11:15)  9  10 I hereby certify the foregoing to be  11 a true and accurate transcript of the  12 proceedings herein transcribed to the  13 best of my skill and ability  14  15  16  17  18 Graham D. Parker  19 Official Reporter  20 United Reporting Service Ltd.  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 2047?  Proceedings  In chief by Mr. Goldie  1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Before you begin, Mr. Goldie, may I inform you  5 ladies and gentlemen with regret that Mr. Justice  6 Verchere died last evening.  Mr. Justice Verchere was  7 one of my favourite people and I think that was a view  8 shared by many who had the pleasure of appearing  9 before him.  He retired as a Justice of the Supreme  10 Court of British Columbia in 1982 and has since kept  11 in very close contact with the judiciary, both during  12 the time he was writing his memorable historical book  13 and otherwise, and we all extend our most sincere  14 regrets to Mrs. Verchere and to his family.  15 MR. GOLDIE: My lord, on a very personal note I would like to be  16 associated with that.  Justice Verchere had asked me  17 just the other day to undertake a minor task of  18 research and he sounded as he had always, and I ask  19 that my sentiments be conveyed to Mrs. Verchere.  20 MR. RUSH: Well, this is not a happy day, my lord.  21 THE COURT:  No, it is not indeed.  22 MR. RUSH:  And I'd like to express my condolences to the family.  23 I had one trial with Mr. Justice Verchere and it was a  24 very enjoyable one and a very successful one and I  25 remember it very very well, and I'd like to associate  26 myself with your lordship's comments.  2 7 THE COURT:  Thank you.  28 MS. RUSSELL: And my memory of Justice Verchere is the first  29 chambers application I think I ever did in which I had  30 no idea of what was going on and he helped me greatly  31 and he was very kind, and my condolences are conveyed  32 as well.  33 THE COURT:  I'm informed that the funeral will be sometime on  34 Tuesday, but I have been given a time and it will be  35 necessary for us to make arrangements in some way to  36 accommodate that, but I may not be able to --  37 MS. RUSSELL:  My lord, we're not sitting Wednesday and Tuesday I  38 understood.  39 THE COURT:  I beg your pardon, we're not sitting Tuesday and  40 Wednesday, that's right.  41 MR. GOLDIE:  Dr. Greenwood, we left at the adjournment the  42 points of comparison that you wished to draw to his  43 lordship's attention that you made and as a basis for,  44 firstly, the conclusion of authorship and, secondly,  45 the nature of the changes.  Characterize very briefly  46 firstly the comparison that you made with respect to  47 the changes which you attribute to the 20479  F. M. Greenwood (for Province)  In chief 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  MR. RUSH:  THE  MR.  THE  MR.  THE  MR.  COURT  Attorney-General.  My lord, there is an objection there.  I think I must  stand by the objection and especially in light of the  witness' comments to your lordship's -- or questions  to him.  thought he was going to point out to me  Well, I  the —  GOLDIE:  That's  point out  all I wanted him to do, my lord, was to  what he did.  COURT:  Yes, he can point out to me what it is he looked  at —  RUSH:  Yes, to that I don't object.  COURT:  -- for the purpose of making his comparison.  RUSH:  Just while I'm on my feet on this point, I did  indicate to my friend that I would stand wherever I  had a concern about a document, and we went over tab  80, and I take it my friend will come back to that,  but there seems to be an unrelated or at least  unidentified and illegible page.  It's the second of  the two pages there, and if my friend is going to go  back to that perhaps the witness can either refer to  it or it can be explained in some way.  THE COURT:  Yes.  All right.  MR. GOLDIE:  Q   I'll come back to that.  Dr. Greenwood, would you  identify please the comparisons that you made?  A   Yes.  I compared the alterations or emendations on  page 183, internal page 183 verso.  Q   That's the back of what is numbered 183?  A   Yes, the next one.  Q   It is of course a separate page?  A  A subsequent page.  Q   Yes.  All right.  Go on.  A   In the margin one will see the words "as near as may  be", and then other words "of England".  Q   Yes.  A   So I looked at that and I looked at the very last  page, the words in the margin "with Treason,  misprisions of Treason", et cetera.  THE COURT:  I'm sorry, the last page?  THE WITNESS:   The very last page, my lord, there's a note  detailing the kinds of crimes for which the army must  return fugitives, and I looked at those two and I  compared the writing with the letter of the 3rd of  October by Charles Yorke, which is tab 80, and I  noted -- I was particularly struck by the similarity  of the letters "D", "N", and "Y" in the emendations on 20480  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 the one hand, and in Yorke's letter on the other.  2 MR. GOLDIE:  3 Q   All right.  And the character of the two emendations  4 are of what kind?  5 A   They are two of the legal provisions.  They deal with  6 the laws.  One of them is to grant the English laws as  7 near as may be agreeable to the laws of England.  8 That's to make it a little more flexible I presume,  9 and the other one is to -- is specifying the crimes  10 for which the military will be bound to return  11 fugitives to the colony where they stood accused.  12 Q   Now, there is other handwriting in this document?  13 A   Yes.  14 Q   And is there -- and perhaps we might look at page 186,  15 the back page of that, and firstly there's an  16 asterisk, "2, note cannot be France".  That I take it  17 is not part of the original?  18 A   Correct.  19 Q   Now, the other handwriting, is there any consensus  20 amongst scholars or is there any source that you can  21 refer to that it establishes the authorship of those  22 changes?  23 A   Yes, I think there's a general consensus amongst  24 scholars that it was the hand of John Pownall, but  25 there is also a specific source that perhaps I should  26 cite.  27 Q   Yes.  28 A  And that is Humphreys' article, Shelburne, Lord  29 Shelburne and the Proclamation of 1763.  30 Q   Yes.  31 A  Which is referred to I believe in tab -- in footnote  32 52.  33 Q   Yes.  34 A   Humphreys attributes the changes, these changes, to  35 Pownall, and he had made himself educated about  36 Pownall's handwriting.  37 Q   Yes.  And briefly, the nature of the changes?  38 A   The nature of the changes were -- some of them were  39 stylistic.  For the most part they were in the  40 interests of greater flexibility, for example, the  41 absolute prohibition of land grants was -- in the  42 reserve was made a bit more flexible by allowing them  43 to be made on the king's own special licence.  44 Q   Yes.  45 A  Also in two places --  46 Q   Well —  47 A   That particular reference is on page 187. 20481  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q   Yes.  Could you go back a page, please, to 186?  2 A   Uh-huh.  3 Q   At the top?  4 A   Yes.  5 Q   Am I correct in my reading of this that there is  6 inserted the words, and I quote, "For the present and  7 until our further pleasure is known to."  8 A   Yes, that's 186 verso.  9 Q   Yes.  10 A   Yes.  And "for the present as aforesaid" down below at  11 the bottom of the page.  12 Q   Yes.  Yes.  Thank you.  13 A   Yes.  14 Q   And those are Pownall's?  15 A   Pownall's.  In addition to that he wrote in a simple  16 definition of protected Indian lands and there are  17 three insertions.  One of them is found on page 186.  18 They're defined by him as "not having been ceded to or  19 purchased by us", and that appears in three different  20 pages, on page 186 verso.  21 Q   Yes.  22 A   Yes, and 187 verso at the top.  23 Q   It's a little hard to make that out.  24 A   Yes.  25 Q   But it is the same wording as the one that you drew  26 our attention to earlier?  27 A   Yes, "which not having been ceded to or purchased by  28 us".  Yes.  29 Q   And then there is a considerable substitution in the  30 same page?  31 A   Yes.  32 Q   Thank you.  The reference that -- to the comparison  33 that you made and which you've given in evidence and  34 the reference to Pownall and Humphreys is in your  35 footnote 84?  36 A   Yes.  37 Q   Now, turning back to tab 80, are you in a position to  38 answer my friend's inquiry with respect to the second  39 page under that tab?  It appears to be a part of a --  40 A   I think it's -- well, I'm not sure.  It's not part of  41 the document and it's probably --  42 Q   I'm sorry, is it tab -- answering my friend's  43 question, is it tab 80?  44 A   Second page on tab 80.  45 Q   Yes.  All right.  Proceed, please?  46 A   I would think that it's probably a mistake of the  47 microfilm photographer who took the next -- the 20482  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 subsequent page in that series.  It's certainly not  2 anything to do with the document as far as I can see.  3 Q   We can take it out then?  4 A   Yes.  5 THE REGISTRAR: The second page?  6 MR. GOLDIE:  Yes.  7 THE COURT:  What about the next one that says "Public Archives  8 of Canada"?  9 MR. GOLDIE:  10 Q   That's really, strictly speaking, that's not  11 necessary, my lord.  12 You have identified the source of this -- of  13 Yorke's letter that you utilized was the microfilm  14 records at the Public Archives of Canada?  15 A   Yes.  Colonial office series 323, Volume 16, page 337,  16 Public Record Office.  17 Q   But the -- it's from the microfilm's records?  18 A   It's from the microfilm copy of that source, the  19 microfilm being held by the National Archives of  2 0 Canada.  21 MR. GOLDIE:   Thank you.  22 MR. RUSH:  The archival certification certifies that.  23 MR. GOLDIE:  24 Q   Yes, I think the question was is it necessary to have  25 it under tab 80, and I think we're agreed on that.  26 All right.  Dr. Greenwood, you were able to  27 identify, are you, the date that the Cabinet or the  28 Privy Council formally approved the Board's draft?  29 I'm referring to page 65 of your report.  30 A   Yes, it was approved on October the 5th by the Privy  31 Council.  32 Q   And your authority for that is in footnote 86?  33 A   Yes, it is.  34 Q   And you state that it was or is it your -- is it your  35 statement that it was signed by the king on October  36 7th?  37 A   Yes.  38 Q   And your authority for that is footnote 87?  39 A   Yes.  40 Q   And the Proclamation was then printed, proclaimed, and  41 distributed to whom?  42 A   To the governors of the North American colonies,  43 superintendents of Indian Affairs, and I think I  44 believe certain officials in England.  45 Q   And the sources for your information are in tab --  46 footnote 88?  47 A   Yes. 20483  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q   You next refer to a document which you identify as the  2 Indian Management Plan of 1764, but before going on to  3 that, under tab 90B, would you just tell his lordship  4 what we find there?  5 A   90B is the letter from the Board of Trade to Sir  6 William Johnson, the Superintendent of Indian Affairs  7 for the Northern District, dated 10 July, 1764, and it  8 states that a plan had been drafted and it encloses  9 the plan.  It makes mention that there is the  10 intention to put it before Parliament and it should be  11 considered the heads of a bill.  12 Q   All right.  And to your knowledge was the plan, to  13 which we'll come to in a minute, ever placed before  14 Parliament?  15 A   To my knowledge it was not.  16 Q   Let us go then to tab 91, which is an extract from the  17 constitutional documents, and the document is entitled  18 "Plan for the Future Management of Indian Affairs,  19 Referred to in the Thirty Second Article of the  20 Foregoing Instructions".  Can you tell his lordship  21 what this document is and what its significance is?  22 A   Yes.  Approximately three weeks before the  23 Proclamation was issued Halifax had instructed the  24 Board to prepare a management plan dealing with Indian  25 trade.  At that point lands were not mentioned, but  26 the Board of Trade began to draft this plan during the  27 early months of 1764 and had a draft ready by  28 mid-June, and this was sent to Johnson with his  29 comments on 10 July '64.  The plan itself proposed  30 regulations for the fur trade, for example, that there  31 should be a tariff set on the trade goods that the  32 merchants would sell the Indians.  The trades should  33 be in the northern district at four to five posts and  34 there should not be wintering and so on.  There were  35 also regulations proposed with regard to Indian lands,  36 that there should be no private purchases and there  37 should be -- when there were surrenders, these should  38 be preceded by survey.  39 Q   And just -- that is spelled out in --  40 A   In the plan.  41 Q   -- paragraph 41 of page 436?  42 A   Yes.  43 MR. RUSH:  Which is which part?  44 THE WITNESS:   The lands provision.  45 MR. GOLDIE:  What the witness has just referred to, no private  46 purchase.  47 THE COURT:  What page, 430? 20484  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1  MR.  GOLDIE  2  Q  3  4  A  5  Q  6  A  7  8  9  10  11  12  13  14  Q  15  16  17  18  A   '  19  20  21  22  23  24  25  Q  26  27  A  28  MR.  GOLDIE  29  THE  COURT:  30  MR.  GOLDIE  31  Q  32  A   '  33  34  35  Q  36  A  37  38  Q  39  A  40  41  MR.  GOLDIE  42  43  THE  COURT:  44  MR.  GOLDIE  45  46  THE  COURT:  47  MR.  GOLDIE  436 of the document under tab 91, my lord, and  paragraph numbered 41; is that correct?  41 to 43 I would say.  41 to 43.  Thank you.  And the plan ends with an appendix or perhaps two  appendices, one is appendix A, which is entitled "List  of Indian Tribes in the northern District of North  America", and there is a list of those tribes which  follows, and then there's appendix B, which is  entitled "List of Indian Tribes in the southern  District of North America", and then there's a list of  tribes under that.  All right.  Now, as you've stated that so far as  you're aware the plan was never submitted to  Parliament, was it in any way implemented in any other  form or through any other agency?  Well, it was implemented in part from the year 1766 to  '68 by Sir William Johnson.  He tried to enforce no  wintering and a tariff, but there were complaints by  the merchants, especially the merchants of Montreal,  and this plus the expense of administration led the  Imperial government to cease implementing the plan as  it were in 1768.  And the source of your information in respect of that  you refer to footnote 93?  Yes.  :   Yes.  And what followed after that?  I'm sorry, what footnote?  Footnote 93, my lord.  Well, the plan was revived in a sense for Quebec in  the instructions to Governor Carleton after the Quebec  Act.  Those instructions would be 1775.  Yes.  And these are under tab 94?  Yes, that's right.  And Carleton was instructed to  take as a guide-line --  Yes.  -- the plan, which was enclosed with his instructions,  and to have his council enact implementing ordinances.  :   Would you refer please then to page -- to page 428  of the document and paragraph 32?  Which --  :  This is under tab 94, my lord.  These are the  instructions to Governor Carleton.  Yes.  All right. 20485  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q   And dated January the 3rd, 1775.  Just pausing there,  2 Dr. Greenwood, can you tell us when the Quebec Act was  3 passed?  4 A   It was in the summer of 1774.  5 Q   Right.  So this is after the Quebec Act, and I had  6 asked you to look at page 428, paragraph 32?  7 A   Yes.  8 Q   Is there anything in that -- or do you direct his  9 lordship's attention to the whole of that paragraph?  10 A   Yes.  11 Q   And that being an instruction to the Governor of  12 Quebec to have regard to a plan, this is in the last  13 four lines, my lord, paragraph 32, where the Governor  14 is directed to have regard to:  "These and a variety  15 of other regulations, incident to the nature and  16 purpose of the Peltry Trade in the interior Country,  17 are fully stated in a Plan proposed by Our  18 Commissioners for Trade and Plantations in 1764, a  19 Copy of which is hereunto annexed, and which will  20 serve as a Guide in a variety of cases, in which it  21 may be necessary to make a provision by Law for that  22 important Branch of the American Commerce."  23 And was that given effect, to your knowledge, Dr.  24 Greenwood?  25 A   Yes, it was implemented at least in part by an  26 ordinance of the Quebec council in 1777.  It was  27 enacted in 1777.  The citation is 17 George the III.  28 Q   Is that found under tab 95?  29 A   Yes.  30 Q   And article 3 directs that: "...after publication of  31 this ordinance, it shall not be lawful for any person  32 to settle in any Indian village or in any Indian  33 country within this province, without a licence in  34 writing."  And then article 5 makes further provisions  35 with respect to the bounds of trading within the  36 province?  37 A   Yes.  38 Q   Now, that reference to within the province, we may get  39 to it a little later, but was that the same geographic  40 area that was outlined in the report of the Board of  41 Trade?  42 A   I have to check.  43 Q   I think it's common ground that there was a change in  44 the boundaries of Quebec?  45 A   Yes.  46 Q   Is the ordinance before or after that change as far  47 as -- 20486  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 A   The ordinance is after the boundaries of Quebec had  2 been enormously widened to the Ohio country.  3 MR. GOLDIE:   Thank you.  My lord, the document under tab 94 is  4 the same as the document that had -- was under 91B.  5 It's the same document.  It's put in there because in  6 the report it's referred to in two different contexts.  7 THE COURT:  It's 91B?  8 MR. GOLDIE:  Yes, 91B and 94 are the same document.  9 THE COURT:  Thank you.  10 MR. GOLDIE:  It's the letter to Sir William Johnson.  11 THE REGISTRAR: I don't have a 91B.  12 MR. GOLDIE:  I'm sorry, I said the 91B, I think it's 90, 90B.  13 Doctor, that brought your examination of the genesis  14 of the Royal Proclamation and with reference to the  15 plan that was put in motion in the -- in 1763 and  16 brought out in 1764 to an end, and you next then  17 examined the geographic reach of the Indian provisions  18 of the Royal Proclamation.  19 MR. RUSH:  Just before you go on to that, I think we should sort  20 out the point we were just dealing with.  I've  21 examined both 90B and 94 in your tabulations and they  22 do not, on my visual examination, appear to be the  2 3 same document.  24 MR. GOLDIE:  25 Q   Oh, I think I better check the changes that I made.  I  2 6 think my friend is right.  The documents which were  27 similar are 90B and 92, and I now regret I brought  28 that subject up.  29 Now, Doctor, I'm not going to ask you to describe  30 the provisions in the Royal Proclamation itself, you  31 did that to some extent yesterday, and I think you  32 have already pointed out that the description of the  33 Indian country or Indian reserve, and I'll adopt that  34 word, was variously described in the earlier documents  35 and in the Royal Proclamation itself.  Would you just  36 direct his lordship's attention to the description as  37 it finally emerged in the Proclamation?  38 A   Paragraph V, my lord.  39 MR. GOLDIE:  All right.  4 0 THE COURT:  V?  41 THE WITNESS:   V.  42 MR. GOLDIE:  43 Q   Yes.  Have you been able to trace in that paragraph  44 references made to the exceptions or the exclusions  45 from the lands and territories that become part of the  46 reserve to those "within the Limits of Our said Three  47 new Governments or within the Limits of the Territory 20487  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 granted to the Hudson's Bay Company, as also, all the  2 Lands and Territories lying to the Westward of the  3 Sources of the Rivers which fall into the Sea from the  4 West and North West as aforesaid."  5 Now, can you just enlarge a bit upon the -- that  6 last clause?  Can you refresh our recollection of  7 the —  8 A  Well, the three new governments were Quebec, East and  9 West Florida, and their boundaries are described in  10 this document.  11 Q   Yes.  12 A   So that the reserve existed outside of those three new  13 colonies.  It says it exists outside the territory  14 granted to the Hudson's Bay Company, but the  15 boundaries of Hudson's Bay Company territories are not  16 given --  17 Q   Right.  18 A   -- in this document.  "Also, all the Lands and  19 Territories lying to the Westward of the Sources of  20 the Rivers which fall into the Sea from the West and  21 the North West as aforesaid.", and that would be  22 westward beyond the Appalachian Ridge, and the sea  23 would be the Atlantic, of course, which is referred to  24 in the previous paragraph.  25 Q   And the antecedent of that water-shed you have  26 identified in Pownall's sketch?  27 A   Yes.  28 Q   And is it delineated on the Bowen chart which is  29 before us?  30 A   Yes, it is, with a major exception, however.  This  31 will be the Appalachian line as represented on the  32 Bowen map.  There's an indentation in Maryland and  33 Virginia, which goes beyond the Appalachians that  34 would be an exception, but otherwise it's represented.  35 Q   That's what is coloured green on the Bowen chart with  36 the exception that you've referred to?  37 A   No, it's -- actually the line itself at the edge of  38 the green is in dark pink.  39 MR. GOLDIE:   All right.  Thank you.  4 0    THE COURT:  For Maryland and —  41 THE WITNESS:   In Maryland and Virginia there's an exception  42 which flows westward, but otherwise it represents the  43 Appalachian line.  44 MR. GOLDIE: And that line was understood, or those words were  45 understood, to be the Appalachians by contemporary  46 cartographers?  47 MR. RUSH:  Well, I object to that, my lord. 204?  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 MR. GOLDIE:  2 Q   Well, I'll reframe the question.  Were there any maps  3 produced contemporaneously which utilized the western  4 boundary of the settlement as the Appalachian chain?  5 A   Yes, there were two at least, one by Jean Palairet.  6 Q   That's P-a-1 —  7 A   P-a-1-a-i-r-e-t.  8 Q   — a-i-r-e-t.  9 A   Jean, and John Gibson, both maps appearing in 1763 and  10 I believe they're tabbed at 192 and 195 respectively.  11 Q   In a later volume of your documents to come?  12 A   Yes.  13 THE COURT:  192 and 19 —  14 MR. GOLDIE:  Five, my lord.  We'll come to those.  15 THE COURT:  What do they purport to show?  16 THE WITNESS: That the western settlement line, the main western  17 settlement line, was the Appalachian line, and these  18 are representations of what the Proclamation was  19 saying.  20 MR. GOLDIE:  21 Q   Is there any doubt amongst scholars about the line  22 that is described in the words that we've been looking  23 at?  24 A   It's a general consensus that it was the Appalachian  25 line.  26 MR. GOLDIE:   Thank you.  27 MR. RUSH:  Excuse me, may the witness just refer us to a  28 footnote reference on that, please?  29 MR. GOLDIE:  30 Q   98, and he has previously referred to Humphreys,  31 Slattery, Sosin, and Stagg.  Those are the people to  32 whom you referred to?  33 A   Yes.  34 MR. GOLDIE:   Thank you.  35 THE COURT:  For the Appalachian Mountains?  36 THE WITNESS:   Yes.  37 MR. GOLDIE:  38 Q   And is there any -- well, is there any question of the  39 identification of the territory granted to the  4 0 Hudson's Bay Company?  What is that more commonly  41 known as?  42 A   Rupert's Land.  43 Q   Yes.  Thank you.  44 A  Well, Rupert's Land was not described, of course, the  45 boundaries were not described in the Royal  46 Proclamation.  47 Q   Right. 20489  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 A   There is a representation on the Bowen map of the  2 boundaries, southern boundary.  3 Q   Is it on that section of the Bowen map that is before  4 us?  5 A   It's probably in part.  Yes, it's in part.  It follows  6 the heights of land down from the top of the map.  7 THE COURT:  I'm sorry?  8 THE WITNESS:   It follows the heights of land.  It's a dotted  9 line following the heights of land from the top of the  10 map down to the -- just west of Lake Abitibis.  Lake  11 Abitibis is really directly south of James Bay,  12 follows the heights of land down to that point just  13 west of Abitibis Lake, and then it proceeds  14 indefinitely westward along the 49th parallel.  15 MR. GOLDIE:  16 Q   Well, is it identified on the Bowen map that you're  17 looking at?  18 A   Yes.  I'd have to see the other section to quote it,  19 but it is.  20 MR. GOLDIE:   All right.  I'm putting before you the second  21 section of the Bowen chart which has been produced.  22 This is the line as it comes out west so --  23 THE COURT:  Coming down over here?  24 THE WITNESS:   It goes straight along here.  It states:  "The  25 Southern Boundary of the Hudson Bay Company  26 Territories settled by Commissaries after the Treaty  27 of Utrecht" which —  28 MR. GOLDIE:  29 Q   And is there a date --  30 A  A date for the Treaty of Utrecht?  31 Q   Yes.  32 A   No.  33 THE COURT:  That's the 49th parallel?  34 THE WITNESS: 49th parallel, yes.  It follows the height of land  35 from Cape Perdrix to a point right there.  See it  36 following there.  37 MR. GOLDIE:  38 Q   Now, at the time what was the international boundary,  39 and when I say at the time, I'm talking about the time  40 in 1763 when, firstly, the period immediately prior to  41 the Proclamation to which this map which is -- you've  42 been speaking to was produced and, secondly,  43 immediately after the Royal Proclamation.  What was  44 the international boundary on the North American  45 continent?  46 A  Well, it was defined by article 7 of the Treaty of  47 Paris, and that's tab 3, and the international 20490  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 boundary was to run from the source of the Mississippi  2 to the Gulf of Mexico.  3 Q   All right.  4 A   The source is not specified.  It's not specified where  5 it was.  6 Q   I beg your pardon?  7 A   It wasn't specified where the source was.  8 Q   No, there is no -- is there a western boundary  9 referred to in the Royal Proclamation?  10 A   Boundary to the reserve?  11 Q   Yes.  12 A   No.  13 Q   Thank you.  Does the Royal Proclamation in words, in  14 terms, cover a complete, without any interruptions --  15 when I say interruptions, does it complete a circle?  16 Can you start at the northeast?  17 A   Of the reserve?  You mean an all enclosed reserve?  18 Not in words, no.  19 MR. GOLDIE:   No.  All right.  Can you indicate to his lordship  20 where the wording is incomplete in that regard?  21 MR. RUSH:  Well, I think your lordship should have the wording  22 in the Proclamation.  23 MR. GOLDIE:  That's precisely what he's going to —  24 THE COURT:  I have it here.  25 THE WITNESS:   Well, in paragraph V it —  26 THE COURT:  Pardon, paragraph V?  27 THE WITNESS:  In paragraph V it first of all defines the reserve  28 negatively in that it is not inside Quebec, East and  29 West Florida, or Rupert's Land, and then it also  30 defines it positively saying that it includes as well  31 the lands and territories lying to the westward of the  32 Appalachian line, and no western boundary is given at  33 that point.  34 MR. GOLDIE:  35 Q   Right.  Thank you.  36 A   Like there's no mention of the Mississippi there.  37 Q   Now, the reference was made there to the three  38 colonies of our three new governments and those you've  39 identified as East and West Florida and Quebec?  40 A   Yes.  41 Q   Were the -- do the provisions of the Royal  42 Proclamation affect those colonies internally as was  43 suggested in one of the preparatoires works?  44 A  Well, there is evidence I believe that paragraph Y was  45 intended to apply to Quebec, East and West Florida.  46 Q   And can you summarize the sources of your information  47 in that regard? 20491  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1  A   '  2  1  3  Q  4  A   '  5  6  Q  7  A   '  8  ]  9  Q  10  A  11  1  12  13  14  15  16  17  1  18  19  20  Q  21  A  22  Q  23  A   '  24  25  Q  26  i  27  A  28  29  30  31  ]  32  33  34  35  MR.  RUSH:  36  MR.  GOLDIE  37  Q  38  A  39  MR.  RUSH:  40  MR.  GOLDIE  41  Q  42  43  44  45  A  46  A  47  MR.  GOLDIE  Well, I make reference first to the instructions to  Governor Murray.  Yes.  Which you've already looked at.  That would be tab 8,  I believe, and it would be article 62.  Yes.  Which refers to the Royal Proclamation and instructs  Murray to abide by it.  Yes.  Secondly, in the spring and summer of 1766 there was a  dispute between one of the leading merchants, George  Allsopp, A-1-l-s-o-p-p, and the government of Quebec,  over Allsopp's supposed encroachments on Indian lands  north of Quebec city.  Now, Allsopp was instructed by  the government to take down his buildings and cease  encroaching and the documents emanating from the  Council of Quebec, the Attorney-General of Quebec, and  the Governor of Quebec, all cite the Royal  Proclamation as having applicability in Quebec.  And the source of that is under tab 103A is it?  103, yes, 103 principally, but 104 as well I suppose.  Yes.  All right.  Yes.  Thank you.  Well, just with regard to East and West Florida, the  instructions were the same as to Murray.  And the document under tab 104A, could you just  describe it to his lordship?  Yes.  The matter was taken to -- I can't remember who  appealed this, but the matter was taken to the  plantations committee of the Privy Council,  essentially the cabinet sitting in public on colonial  matters, and the Quebec government's position was  upheld by the plantations committee which did not  however go into any reasoning about the applicability  of the Proclamation.  Where's that, please?  That's under tab 104A.  104A.  Could you direct us to the paragraph?  Are you referring in the -- it's the page that  consists of two columns.  Are you referring to the  left-hand column in the last paragraph beginning with  the words "On the Board of Trade report of 2 June"?  104?  Yes.  :  All right.  Thank you. 20492  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 THE COURT:  But that says that "The petitioner had no right by  2 Your Majesty's Proclamation of the seventh of October,  3 1763, to Trade at the Posts."  4 MR. GOLDIE:  5 Q   Yes.  6 A   Yes, freedom to trade, but not to put buildings.  But  7 the point I was making there is that the documentation  8 emanating from the Quebec government took the position  9 that the Proclamation applied.  10 THE COURT:  That the Proclamation did apply?  11 THE WITNESS:   That the Proclamation did apply in Quebec, the  12 lands provision as well as the trading provisions.  13 MR. GOLDIE:  Your lordship will see at the top of the next  14 column the direction "that the Buildings and Magazines  15 erected at the said Posts by the Petitioners should be  16 demolished."  17 THE COURT:  Uh-huh.  18 MR. GOLDIE:  19 Q   Going back one question, Dr. Greenwood, Sir Guy  20 Carleton replaced Governor Murray as Governor of  21 Quebec.  Can you tell us what year?  22 A  Well, as full governor I believe it was 1768, but he  23 replaced him as a functioning head of executive with  24 the title lieutenant governor I believe it was 1766,  25 but full governor 1768.  26 Q   Did he receive royal instructions when he became full  27 governor?  28 A   Yes, he did.  29 Q   Did the provisions of those instructions with respect  30 to the Indian lands, I think you referred to paragraph  31 62 in Governor Murray's instructions, were they  32 repeated in Governor Carleton's instructions?  33 A   They were.  I haven't done a comma-by-comma  34 comparison, but yes, they were.  35 Q   Is the source of your information indicated in  36 footnote 102?  37 A   Yes.  38 MR. GOLDIE:   All right.  Now, I think that completes the first  3 9 volume, my lord.  4 0 THE COURT:  Yes.  41 MR. RUSH:  I'm sorry, what does "CD" refer to?  42 MR. GOLDIE:  Constitutional documents.  43 MR. RUSH:  Thank you.  44 MR. GOLDIE:  Now, my lord, in a formal way I tender Exhibit 1159  45 and the documents therein tabbed in accordance with  46 the footnote numbers in each tab and described in the  47 index, which is the first document in the binder, as 20493  F. M. Greenwood (for Province)  In chief 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  MR. RUSH  MR.  MR.  MR.  THE  MR.  THE  MR.  THE  exhibits numbered consecutively according to the tab  numbers.  My only difficulty with that, my lord, is subject to  my cross-examination of course is that there was one  document which was incomplete.  GOLDIE:  Yes.  RUSH:  And my friend was going to determine where there was  a missing page and, as well, tab 26 we were missing a  page as well.  There is a -- the document runs from  234 to 236 and on to 238.  So subject to my obtaining  copies of those missing pages, I have no comment about  them.  All right.  Well, then those documents will be  Exhibit 1159-1 to 104A.  Utilizing the numbers on the tabs.  Yes, that's more accurate.  Thank you.  Because all the numbers aren't there.  No.  Okay.  THE COURT  GOLDIE  COURT:  GOLDIE  COURT:  GOLDIE  COURT:  (EXHIBIT  (EXHIBIT  (EXHIBIT  Men)  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  of Trade  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  1159-  3: Treaty of Paris)  8: Instructions to James Murray)  9A: "Remarks on the Letter to Two Great  'ñ†12A: Labaree, L.W.)  13: Blackstone, Sir William)  20: Tomlinson, John R.)  25: Egremont to Amherst)  26: Pownall to Egremont)  27: George III to Bute)  30: Egremont to Lords of Trade)  32A: Plan of Forts & Garrison)  33: "Hints" by Henry Ellis)  45: Barrow, Thomas C.)  48: Memorandum, Knox to Shelburne)  52: "Sketch" by John Pownall)  58: Lords of Trade to Egremont)  61: Egremont Papers; "Particulars")  62: "Remarks on the Report of the Board  63: Draft minute for the Privy Council)  65: Egremont to Lords of Trade)  67: Lords of Trade to Egremont)  77: Halifax to Lords of Trade)  80: A.G. Yorke to Lords of Trade)  83: Draft proclamation) 20494  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 (EXHIBIT 1159-90B: Lords of Trade to Johnson)  2 (EXHIBIT 1159-91: Plan for the Future Management of  3 Indian Affairs)  4 (EXHIBIT 1159-92: Lords of Trade to Johnson)  5 (EXHIBIT 1159-94: Instruction to Carleton)  6 (EXHIBIT 1159-95: An Ordinance to prevent the selling  7 of strong liquors...)  8 (EXHIBIT 1159-101:  Articles of Capitulation)  9 (EXHIBIT 1159-102A: Instructions to Govr. James  10 Murray)  11 (EXHIBIT 1159-103A: Minutes of Council)  12 (EXHIBIT 1159-104A: Minutes of recommendation)  13  14 MR. GOLDIE:  I next hand up Volume 2, my lord.  15 THE COURT:  Thank you.  16 MR. GOLDIE:  And this is organized in the same way, that is to  17 say, by footnote numbers and there is an index of the  18 same kind -- well, it's the same index in the binder  19 which I would ask a number be reserved for my lord.  20 THE COURT:  1160.  21 MR. GOLDIE:  No, there's a —  22 THE REGISTRAR: That's the Royal Proclamation.  23 THE COURT: Oh, is it.  1161.  24 THE REGISTRAR: Yes.  25  26 (EXHIBIT 1161:  Reserved for Volume 2 binder, re-Dr.  27 Greenwood)  28  29 MR. GOLDIE:  30 Q   Now, we've mentioned the three new colonies and the  31 application of the Royal Proclamation.  Is there any  32 evidence that you wish to draw to his lordship's  33 attention with respect to Nova Scotia and to what  34 effect is that evidence?  35 A  Well, my material on Nova Scotia concluded that --  36 well, it was I suppose argumentative that probably the  37 Proclamation did not apply to Nova Scotia.  38 Q   Well, the —  39 A   But —  40 Q   You're not at liberty to express --  41 A   No, no.  42 Q   -- an opinion, but you are at liberty to bring to his  43 lordship's attention anything which you consider to be  44 of assistance in forming an opinion with respect to  45 the application of the Royal Proclamation to Nova  46 Scotia?  47 A  Well, I would refer his lordship then to the material 20495  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 found in Stagg Anglo-Indian relations which appears  2 cited in footnote 106.  3 MR. GOLDIE:   Right.  4 THE COURT:  I'm sorry?  5 MR. GOLDIE:  6 Q   Footnote 106 is the source of the -- of Dr.  7 Greenwood's views with respect to the application of  8 the Royal Proclamation of Nova Scotia.  Perhaps you  9 might tell us, summarize --  10 A  Well —  11 Q   -- what those sources indicate to you?  12 A  Well, Stagg tries to make the case that the French  13 government had never acknowledged any entitle to Nova  14 Scotia and the British government took the same  15 position.  And, secondly, or perhaps, thirdly, the  16 instructions to the governor of Nova Scotia in 1764  17 did not make reference to the Royal Proclamation.  18 That as I recall two essential bases for his position.  19 Q   For that position?  20 A   Yes.  21 Q   Is there any evidence of any acknowledgement that  22 perhaps the Royal Proclamation did have some  23 application there?  24 A   Not to my knowledge, unless one looks at the plan, and  25 the plan includes in some of its tribes the Micmacs,  26 for example, that were in what is now New Brunswick,  27 so to that degree the documentation does refer to  28 Indian tribes, but the plan was mainly concerned with  29 trade, not lands --  30 Q   Yes.  31 A   -- provision.  32 Q   And was there any instruction to the governor of Nova  33 Scotia comparable to that, to the governor of Quebec  34 to implement the plan or any part of it?  35 A   No, there was not.  36 Q   No.  And I take it there is no colonial --  37 A   Up to and including the year 1764.  I don't know if  38 you have that.  39 Q   Yes.  All right.  Now, tab 105 in your Volume 2, that  40 constitutes the instructions or excerpts from the  41 instructions to the governors of East and West  42 Florida?  43 A   Yes.  44 Q   Or an extract from Larraby's --  45 A   Labaree.  46 Q   Not Larraby, Labaree, L-a-b-a-r-e-e?  47 A   Yes, it is. 20496  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q   And what is it that you rely upon?  What do you --  2 A  Well, there's a reference in the very first line to  3 the Proclamation.  4 Q   And where do we find that, please?  5 A   That's at internal page 479.  This is number 690.  6 Q   Yes.  7 A  And it's internal page 479 the first line:  8  9 "Whereas We have, by Our Proclamation dated the  10 seventh day of October in the Third year of Our  11 Reign, strictly forbid, on pain of Our  12 Displeasure, all Our Subjects from making any  13 Purchases or Settlements whatever, or taking  14 possession of any Lands reserved to the Several  15 Nations of Indians with whom We are connected,  16 and who live under Our Protection, without Our  17 especial Leave for that Purpose first obtained;  18 'It is Our express Will and Pleasure, that you  19 take the most effectual Care that Our Royal  20 Directions herein be punctually complied with."  21  22 Q   Yes.  All right.  And those instructions went to East  23 Florida?  24 A  West Florida.  25 Q   West Florida and, as indicated, Quebec?  26 A  And Quebec.  There may be slight grammatical  27 differences, but yes.  28 Q   Yes.  You've stated that there is no such instruction  29 given to the governor of Nova Scotia.  Is there any  30 indication that the Proclamation was made publicly  31 known in Nova Scotia?  32 A   Yes, it was published in Nova Scotia as it was in  33 Quebec.  34 THE COURT:  What is the date of this instruction number 690?  35 MR. GOLDIE:  36 Q   If you look at page 480, your internal page 480, Dr.  37 Greenwood, under the one that you've just read are the  38 words "East Florida 1763 Rev."?  39 A   Yeah, means revised or a new instruction, yeah.  40 Q   And then Quebec 1763 and 1775?  41 A   Yes.  42 THE COURT:  Probably 1763 then?  43 THE WITNESS:   Oh, 1763.  I can't remember the exact month and  44 day.  45 THE COURT:  Yes.  All right.  46 MR. GOLDIE:  47 Q   But that was the year these -- 20497  F. M. Greenwood (for Province)  In chief by Mr. Goldie  1 A   These are post-Proclamation.  2 Q   -- provisions of the instructions were sent out?  3 A   Yes.  4 MR. GOLDIE:   Yes.  All right.  Thank you.  Now, you mentioned  5 publication in Nova Scotia.  Do you regard that as  6 conclusive with respect to the application of the  7 Royal Proclamation?  8 MR. RUSH:  No, I think that's my friend's argument.  9 MR. GOLDIE:  10 Q   All right.  You have identified certain sources that  11 assisted you in reaching an opinion on that.  Are  12 those identified in footnote 109 -- well, footnotes  13 107, 108, and 109?  14 A   107, 8 and 9.  Yes.  15 MR. GOLDIE:   Thank you.  16 MR. RUSH:  Well, my lord —  17 THE WITNESS:   106 as well.  106 to 109.  18 MR. GOLDIE:  Yes, we've referred to 106.  19 MR. RUSH:  And 107 is a source and 108 is a source, but 109 is  20 an opinion.  21 MR. GOLDIE:  It refers to sources.  22 MR. RUSH:  Well, to the extent that it does, I don't object.  23 THE COURT:  Yes.  All right.  24 MR. GOLDIE:  Thank you.  25 THE COURT:  Should we adjourn, Mr. Goldie?  26 MR. GOLDIE:  Thank you, my lord.  27 THE REGISTRAR: Order in court. Court stands adjourned until two  28 o'clock.  29  30 (PROCEEDINGS ADJOURNED FOR LUNCH RECESS)  31  32 I hereby certify the foregoing to  33 be a true and accurate transcript  34 of the proceedings herein to the  35 best of my skill and ability.  36  37  38 Tanita S. French  39 Official Reporter  40  41  42  43  44  45  46  47 2049?  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 (PROCEEDINGS RECONVENED AT 2:00 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord, yesterday, reference was made to an  6 enclosure or -- with the document at tab 30, which is  7 the Lord Egremont's letter of May the 5th to the Board  8 of Trade, and the question was the source of the  9 circulars to the governors of Virginia, the two  10 Carolinas and Georgia, which was one of the  11 enclosures.  And I am instructed that that circular,  12 which is dated March the 16th, 1763, from Egremont to  13 those governors, can be found in Saunders, that's the  14 name of the editor, Colonial Records of North  15 Carolina, volume 6, pages 974 to six.  And that is --  16 yes, that's the source of those -- those enclosures  17 may be found there.  18 Then yesterday, it was pointed out that the  19 manuscript document under tab 26 is very difficult to  20 read.  It is Mr. Pownall's letter to the Earl of  21 Egremont, dated February 15th, 1763.  And I have a  22 typescript which might be enclosed -- might be put  23 behind that letter at that tab.  24 THE COURT:  Yes, all right.  Thank you.  25 MR. RUSH:  My lord, my problem with that tab was that the second  26 of the two pages, that is 235, for me is missing and  27 it appears to be so.  28 MR. GOLDIE:  It is -- the same difficulty -- my friend raised  29 this with me.  The same difficulty appears.  The  30 typescript faithfully records the fact that the first  31 page has 234 on it, which is printed, it's not part of  32 the manuscript.  The second page is 236, and the third  33 page is unnumbered, although there is a --  34 THE COURT:  I'm sorry, what tab did you say?  35 MR. GOLDIE:  This is 26, my lord.  36 THE COURT:  Of the?  37 MR. GOLDIE:  Of book one.  38 THE COURT:  Of book one?  39 MR. GOLDIE:  Yes.  And I had agreed to try and —  4 0 THE COURT:  Oh yes.  41 MR. GOLDIE:  42 Q   Now, turning to volume 2, my lord.  There is a section  43 of your report which indicates that you examined the  44 application of Paragraph Y of the Royal Proclamation  45 to both Newfoundland and Rupert's Land, and I am just  46 going to have you agree with me that the sources that  47 you have utilized in your examination -- and you are 20499  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 precluded from stating the result of your  2 examination -- is firstly as a secondary source,  3 footnote 110?  4 A   Yes.  5 Q   As as sources of information and which are found in  6 the volume 2, tab -- tabs 111, which is the -- is the  7 report of the Labrador boundary case?  8 A   Yes.  9 Q   112?  10 A   Yes.  11 Q   Which is the statute of George III of 1792, dealing  12 with the administration of justice in Newfoundland?  13 A   Yes.  14 Q   113, which is the same document that we had looked at  15 prior to that?  16 A   Yes.  17 Q   And which is in here because of its reference to  18 Newfoundland?  19 A   Yes.  20 Q   The secondary reference referred to in footnote 114?  21 A   In relation to Rupert's Land, yes.  22 Q   In relation to Rupert's Land.  And 115?  23 A   Yes.  24 Q   116?  25 A   Yes.  26 Q   117.  And 117 is the source of your conclusion that it  27 was -- it is not even clear that a copy of the  28 Proclamation was ever sent to the Hudson's Bay  29 Company; is that correct?  30 A   That's correct, yes.  31 Q   118?  32 A   Yes.  33 Q   The secondary reference --  34 A   Yes.  35 Q   -- is 119?  36 A   Yes.  37 Q   Tab 120 contains, again, extracts from Blackstone's  38 Commentaries, and that is the source of your  39 information with respect to the types of colonies?  40 A   Yes.  41 Q   And you have in addition to that source, the  42 references at footnotes 121 and 122?  43 A   Yes.  44 Q   And as a secondary reference with respect to  45 proprietary and chartered colonies in North America,  46 you have the references at footnotes 123, 124 and 125?  47 A   Yes.  Except I don't know that there is a reference in 20500  F.M. Greenwood (for Province)  In chief by Mr. Goldie  Submission by Mr. Rush  1 124, but yes, certainly those are my --  2 MR. RUSH:  Or 125.  3 THE WITNESS:  No.  125 there is a reference to the plan, but 124  4 doesn't include a reference as far as I can see,  5 but —  6 MR. GOLDIE:  7 Q   All right.  I'll remove that.  At tab 12 6 in volume 2,  8 you have an extract from a publication which sets out  9 a part of the charter granted to the Hudson's Bay  10 Company in May 2nd, 1670?  11 A   Yes.  12 MR. RUSH:  What's that number, please?  13 THE WITNESS:  Cumming and Mickenberg.  14 MR. GOLDIE:  15 Q   It's stated in footnote 126.  And you make reference  16 to a -- possibly another source that you took into  17 consideration as indicated in footnote 127?  18 A   Yes.  19 Q   At page —  20 MR. RUSH:  What source is that?  21 THE WITNESS:  That's Stokes.  22 MR. RUSH:  Stokes?  23 THE WITNESS:  Yeah.  24 MR. GOLDIE:  25 Q   Yes.  Then at page 97 of your review, you begin a  26 consideration of the implications of the Indian lands  27 provisions for what is now British Columbia; is that  28 correct?  29 A   Yes.  3 0 Q   And —  31 MR. RUSH:  Passing on to another subject?  32 MR. GOLDIE:  Yes.  33 MR. RUSH:  Well, my friend has included in the sources, both  34 secondary and primary, four sources which, in my  35 submission, are not appropriate exhibits in the  36 proceedings, and I would take objection to them.  I  37 can either do that now or at the end when my friend  38 seeks to tender the volume as a whole.  39 MR. GOLDIE:  Well, perhaps my friend might be good enough to  40 identify those now.  41 MR. RUSH:  Yes.  In my submission, the 111, the Labrador  42 Boundary case is not an appropriate exhibit.  116 --  43 MR. GOLDIE:  It's not.  44 MR. RUSH:  I see.  45 MR. GOLDIE:  It's not included.  46 MR. RUSH:  That's right.  That's footnote reference.  120,  47 Blackstone's Commentaries.  And that's it, my lord, 20501  F.M. Greenwood (for Province)  Submission by Mr. Goldie  1  2  3  MR.  GOLDIE  4  MR.  RUSH:  5  MR.  GOLDIE  6  7  8  9  10  11  THE  COURT:  12  13  14  15  MR.  GOLDIE  16  THE  COURT:  17  18  MR.  RUSH:  19  20  THE  COURT:  21  MR.  RUSH:  22  23  24  ]  25  26  27  THE  COURT:  28  MR.  GOLDIE  29  THE  COURT:  30  MR.  GOLDIE  31  THE  COURT:  32  MR.  GOLDIE  33  THE  COURT:  34  35  36  MR.  GOLDIE  37  38  39  THE  COURT:  40  MR.  GOLDIE  41  42  THE  COURT:  43  44  MR.  GOLDIE  45  THE  COURT:  46  MR.  GOLDIE  47  there were just those two.  Oh, there were a number of  statutes, but I really --  :  Well, I'm going to come to those.  I don't really take objection to those.  :  Well, my lord, it -- these are identified as what  the witness has relied upon.  The fact that it is a  reported case is of no significance.  It is primarily  for a discussion of factual matters.  The -- the same  thing with respect to Blackstone.  Blackstone falls  into the category of an ancient document.  Well, I am a little hard-pressed to figure out just  what I ought to do with this.  Mr. Goldie could  presumably refer to these in his argument, whether  they are exhibits or not.  :  Well that's true.  That's true.  I could refer to them whether they are mentioned in  argument or not mentioned in argument.  Exactly.  But not for the proof of any fact contained  in any of the cases.  No.  These are --  And that can be the only reason it is being advanced  now.  Presumably these will -- propositions will be  advanced or refuted or whatever.  But the fact of the  matter is, they are not foundation documents, they are  not original documents or manuscripts upon which any  of the witness' evidence is relevant.  I don't think they are ancient documents, are they?  :  Well Blackstone's Commentary is.  Well, is it?  :  Well, it was published --  It's certainly old enough.  :  Yes.  But an ancient document, seems to me, must be one  that is capable of standing on its own as proof of  something.  :  Well, doesn't it come under the heading of a  treatise?  I mean Sir William Blackstone was a  judge --  Yes.  :  -- who, as a pioneering professor of law, commented  on the laws of England.  Well, I think you are correct.  I certainly think  that it's a learned treatise.  That's what it was.  :  Yes.  It wasn't a judgment.  :  No, no, it is not -- he was a judge when he wrote  it, but he didn't write it as a judgment, I'll put it 20502  F.M. Greenwood (for Province)  Ruling by the Court  In chief by Mr. Goldie  1 that way.  The Dominion Law Report is not quite in the  2 same category as a --  3 THE COURT:  I do not know.  I am not going to accede to Mr.  4 Rush's objection because I do not think it is a matter  5 that hurts him in any way.  The documents are here and  6 we can all refer to them if we want to.  They  7 certainly do not prove anything in the sense of a  8 free- standing matter of fact.  But it may be a  9 convenient -- they may conveniently collect  10 information together that is of some assistance that  11 can be proven in some other way.  But I just do not  12 think there is any -- any harm done by leaving things  13 as they are, and I think you should just carry on.  14 MR. GOLDIE:  I was at page 97 of the witness' -- and you --  15 THE COURT:  Sorry.  Where are you now?  16 MR. GOLDIE:  I was at 97 of his invisible report, my lord.  17 THE COURT:  Oh yes.  18 MR. GOLDIE:  19 Q   And this is just a means of orienting the witness.  I  20 hope I am not misunderstood by my reference.  21 In the course of your research, you considered the  22 implications of the colonies -- Indian lands provision  23 for what is now British Columbia, is that correct?  24 A   Yes.  25 Q   And in so doing, you considered whether the -- there  26 was any evidence that the framers of the Proclamation  27 intended to apply its provisions to what I will call  28 after-acquired lands; is that correct?  29 A   Yes.  30 Q   Now, in forming an opinion on that, did you have  31 regard, firstly, to the report of the Board of Trade  32 to the King of the 7th of March, 1768, which we have  33 already seen, but which is reprinted again at this  34 place under tab 128?  35 A   Yes.  36 Q   Did you have regard to colonial statutes and  37 contemporary statutes dealing with the question of  38 application to after-acquired lands?  39 A   Not colonial statutes with respect to that subject.  40 Imperial statutes.  I looked at colonial statutes  41 dealing with private purchases.  42 Q   I see.  I beg your pardon.  The colonial statute to  43 which you had reference was the provision relating to  44 avoiding the private purchases of land after the  45 Proclamation?  46 A  Avoiding private purchases prior to the Proclamation.  47 Q   All right. 20503  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 A  And I cited one in footnote 129.  2 Q   All right.  That's not in the document book but that's  3 the source of your -- of what you considered?  4 A   Yes.  5 Q   Now, with respect to contemporary statutes, you had  6 regard to those which are under tab 130?  7 A   Yes.  8 Q   Which is —  9 A   These were Imperial statutes.  10 Q   These were Imperial statutes.  Perhaps you would just  11 give his Lordship just the title of the --  12 A   The title and the cite?  13 Q   Of the first one under tab 130 and the particular  14 place to which you made -- particular reference to  15 which you wish his lordship to be aware.  16 THE COURT:  This would Fifth Year of Queen Mary?  17 MR. GOLDIE:  1558 my lord.  18 THE COURT:  Not 15.  19 MR. GOLDIE:  No, that can't be right.  Oh, that's the page  2 0 number.  21 THE COURT:  1700 is it?  No.  It would be 1688 plus five, would  22 it not?  No, William and Mary were 16.  23 MR. GOLDIE:  24 Q   Oh, I suppose, yeah, the Queen Mary is related --  25 William and Mary is --  26 A  William and Mary 1689.  27 THE COURT:  1689.  So this would be 1689 plus five?  28 THE WITNESS:  The first one I am starting with, my lord, is the  29 Act of Supremacy of Elizabeth I, which is in tab 130.  30 MR. GOLDIE:  All right.  Well, we'll come to that.  31 THE COURT:  I'm sorry, this first year, Queen Mary, is Mary  32 Stewart is it?  33 THE WITNESS:  Yes.  34 THE COURT:  Oh.  All right.  35 THE WITNESS:  And on the date it says 1558 in the printed copy.  36 I believe it's 1559.  That might be an old calendar /  37 new calendar problem.  Whereas if -- you know, if an  38 act was passed, say, on March the 1st, 1558, it would  39 now, today, be 1559.  I cited it in any case as one  40 Elizabeth I, 1559, new calendar, chapter one.  And  41 it's popularly entitled the Act of Supremacy, and  42 the -- required all officers to take an oath denying  43 the Pope's jurisdiction.  44 MR. GOLDIE:  45 Q   You don't need to summarize.  Just the section?  46 A   Yes.  Section 16, my lord.  47 Q   Sixteen.  Thank you. 20504  F.M. Greenwood (for Province)  In chief 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  Which is on page 111.  Q   Perhaps you might read the language that you had  particular regard to?  A   Yes.  "That no foreign prince, person, prelate, state  or potentate --"  THE COURT:  Sorry, I haven't found that.  Page 111?  THE WITNESS:  Internal page 111, section Roman Numeral 16.  THE COURT:  Sixteen is?  THE WITNESS:  XVI.  THE COURT:  I see, 111 is both sides of the page?  THE WITNESS:  Yes, I believe so.  THE COURT:  Yes, all right.  I am sorry.  THE WITNESS:  "That no foreign prince, person, prelate, state  or potentate spiritual or temporal, shall at  any time after the last day of this session of  parliament use, enjoy or exercise any manner of  power, jurisdiction, superiority, authority,  preheminence or privilege spiritual or  ecclesiastical, within this realm, or within  any other your Majesty's dominions or countries  that now be, or hereafter shall be."  Q   Thank you.  And now we get to what is under tab 131a.  And what is the act that we find there?  A   This is popularly called the Navigation Act -- one of  many Navigation Acts -- of 1696, seven and eight,  William III.  And the section to be remarked upon is  section two:  ...or exported out of, any colony or plantation  to his Majesty, in Asia, Africa or America,  belonging, or in his possession, or which may  hereafter belong unto, or be in the possession  of his Majesty.  Q   Thank you.  And the statute under 131b?  A   That is another Navigation Act, earlier, of 1663.  It's fifteen Charles II, chapter seven, and it's  section six at the bottom of page 161:  Shall be imported into any land, island  plantation, colony, territory or place to His  Majesty belonging or which shall hereafter  belong unto or be in the possession of His  Ma j esty. 20505  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q   Right.  And under 132?  2 A   132 was popularly known as the Molasses Act.  Six  3 George II, chapter 13, and the passage to be remarked  4 upon is in the preamble, about half-way down the first  5 page:  6  7 ...not in the possession or under the dominion  8 of his Majesty, his heirs and successors, which  9 at any time or times within or during the  10 continuance of this act, shall be imported or  11 brought into any of the colonies or plantations  12 in America, which now are or hereafter may be  13 in the possession or under the dominion of his  14 Majesty.  15  16 Q   And under 133?  17 A   133, I don't think it has a popular short title.  It  18 was an Act for the better preservation of His  19 Majesty's woods in America.  It's 1729, to George II,  20 chapter 35.  Again, it's the preamble on page 103,  21 near the end of the preamble:  22  23 ...or within any of them, or in any other  24 province or country in America, that now  25 belongs or hereafter shall belong to the crown  26 of Great Britain.  27  2 8 Q   Thank you.  2 9    THE COURT:  I haven't found that yet.  30 THE WITNESS:  Oh, it's on page 103.  It's the very end of the  31 preamble slash section one.  32 THE COURT:  Yes, I found it.  Thank you.  Yes.  33 MR. GOLDIE:  34 Q   And 134 is the report of Campbell v. Hall, but it is  35 in here for the -- a Governor's commission?  36 A   Yes.  37 Q   Issued in 1761.  And would you locate that for his  38 lordship?  39 A   It's -- I am not sure if the pagination is shown  40 properly, but it's on page 246, which is the second  41 physical page to the very -- in the very right-hand  42 column, approximately half-way down.  Second physical  43 page, right-hand column, half-way down:  44  45 ...constitute and appoint Charles Pinfold, esq.  46 captain-general, and governor in chief in and  47 over our islands of Barbadoes, St. Lucia, 20506  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 Dominica, St. Vincent, Tobago, and the rest of  2 our islands, colonies and plantations in  3 America, commonly called or known by the name  4 of our Carribee islands.  5  6 Q  7 ...lying in being to the windward of  8 Guadeloupe, and which then were or after should  9 be under our subjection and government.  10  11 A   Yes.  12 MR. RUSH:  I take the same objection to that, my lord.  I don't  13 think any case can prove a matter of fact.  14 MR. GOLDIE:  15 Q   It's -- well, it's the source -- well, I'll ask the  16 witness.  Is there any other source known to you of  17 that particular commission?  18 A   I wasn't able to find any other source, so I used this  19 as the source for the commission in relation to the  20 territories involved.  21 Q   All right.  Now under 135 what do we find?  22 A   This is a Stamp Act.  23 Q   All right.  24 A   Of 1765.  It's five George III, chapter 12, and the  25 portion to be noted is in the preamble at the end of  26 the first paragraph:  27  28 ...His Majesty, his heirs, and successors,  29 throughout the colonies and plantations in  30 America which now are, or hereafter may be,  31 under the dominion of his Majesty, his heirs  32 and successors.  33  34 Q   And I understand that you also make reference,  35 although it's not in the volume before us, to the  36 statute of four George III, chapter 15, dealing with  37 import duties?  38 A   That's correct.  That's the statute of 1764.  39 Q   All right.  And -- did you consider whether a statute  40 which applied generally to colonies could be confined  41 or should be confined to existing colonies in the  42 absence of the kind of clause that you have just  43 referred his lordship to?  44 MR. RUSH:  I object to that, my lord.  45 MR. GOLDIE:  Well, my lord, all I am asking him is did he  46 consider it.  I'm precluded from saying, "What was the  47 result of your consideration?" 20507  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 MR. RUSH:  Well, my lord, surely the question is, "Did you  2 consider certain documents?" as my friend has gone  3 through.  I think that's an appropriate examination.  4 But whether he considered something beyond the  5 documents, is it relevant?  6 THE COURT:  Well, isn't it — isn't it really a question of what  7 material does he think, as an historian, should be  8 included in the collection that I should pay some  9 attention to as a possible basis for an argument that  10 I will later receive?  11 MR. RUSH:  Yes.  That's —  12 THE COURT:  And therefore, it's something that he can include in  13 his collection.  14 MR. RUSH:  Yes.  And if your lordship is referred to documents  15 or sources of some kind -- apparently they are  16 somewhat farther afield than documents -- then I  17 think -- I don't object to them.  But if there is  18 other ruminations then I do.  19 MR. GOLDIE:  Well, I am not going beyond documents.  2 0 THE COURT:  All right.  21 MR. GOLDIE:  All I was endeavouring to do was to direct the  22 witness' attention to the subject matter.  23 THE COURT:  Yes, all right.  24 MR. GOLDIE:  25 Q   Now, have you considered any documents which relate to  26 the question of the effect of the absence of such a  27 clause, and if so, would you inform us and direct his  28 lordship's attention to them?  29 A   Yes, I have.  And the first one I dealt with was an  30 opinion dated 18 October 1705 regarding --  31 Q   Is that under tab 136?  32 A   Yes.  33 Q   And can you tell his lordship what that's all about?  34 A  Well, the opinion was rendered by Edward Northey who  35 was -- N-O-R-T-H-E-Y, Edward Northey -- who was  36 England's Attorney-General.  At that point it's not  37 yet Great Britain.  England's Attorney-General and he  38 was reporting on the applicability to the North  39 American colonies of an 1585 statute against Roman  40 Catholic priests.  So it's -- the question was whether  41 this particular statute applied to colonies that had  42 been acquired later.  43 Q   All right.  Now, can you direct his lordship to the  44 language --  45 A   Yes.  46 Q   -- which you say is relevant to that?  47 A   Yes.  It's on -- printed page number 4553, or in the 2050?  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 top right-hand corner, 72.  And it's in the first full  2 paragraph, and it's six, seven lines from the bottom.  3 Q   Yes?  4 A  And he says, "It is claimed" -- this is Northey.  5 MR. RUSH:  Just a moment until I find it.  6 THE COURT:  Sorry, it is what?  7 THE WITNESS:  "It is claimed that Law —"  It's towards the  8 bottom of the first full paragraph.  9 MR. GOLDIE:  10 Q   It's eight lines up from the bottom of that first  11 complete paragraph, my lord.  12 A  13 It is claimed that law extendeth to all the  14 Dominions the Queen had when it was made, but  15 some doubt hath been made, whether it extendeth  16 to Dominions acquired after, as the plantations  17 have been.  18  19 Now, Northey offered no conclusion on that point,  20 but he raised the question.  21 Q   Right.  And that —  22 THE COURT:  I haven't found that at all.  Perhaps you can show  23 me where it is.  24 THE WITNESS:  "It is plain that law extended to all of the  25 dominions."  26 THE COURT:  Starts there?  27 THE WITNESS:  Yes.  28 THE COURT:  Just a moment, please.  Could you read that again,  29 please?  30 A   Yes.  31  32 It is claimed that law extendeth to all the  33 Dominions the Queen had when it was made, but  34 some doubt hath been made, whether it extendeth  35 to Dominions acquired after, as the plantations  36 have been.  37  38 And Northey did not find it necessary to resolve  39 that issue.  40 Q   And any further documents to which you wish to refer?  41 A   Yes.  That incident -- that document is taken from an  42 original in the documents papers, National Archives of  43 Canada.  Yes, there are three documents written by the  44 Attorney-General of Quebec in the 1760's, Francis  45 Maseres, M-A-S-E-R-E-S, no accent at all.  Francis  46 Maseres, and they are listed in footnote 137.  47 Q   And under tab 137a is all of them? 20509  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 A   Yes.  2 Q   And I refer you to page 181?  3 A   Yes.  4 Q   And the Attorney-General is considering an Act  5 which -- in its prospective or potential application  6 to the Roman Catholic subjects of the King in Quebec?  7 A   Yes.  8 Q   And would you read the part on page 181 to which you  9 have --  10 A   Yes.  He has previously been talking about the Act of  11 Supremacy, which had the hereafter clause.  And then  12 he goes on to talk about I Elizabeth, chapter two, on  13 the uniformity of the common prayer.  And he says  14 about that Act, that second Act:  15  16 This Act does not indeed say expressly, as the  17 former does --  18  19 Q   Just pausing there.  The "former" being the Act of  2 0 Supremacy?  21 A   Yes.  22 Q   Yes.  Go on?  23 A  24 -- does not indeed say expressly, as the former  25 does, that it shall extend to all her Majesty's  26 dominions that hereafter shall be, as well as  27 those that at present are, belonging to the  28 Crown of England.  But there is reason to  29 believe it meant so; or at least there is room  30 for doubt.  31  32 Q   Right.  Thank you.  And under 137b, and I refer you to  33 page 111?  34 A   Internal page 111.  And it says this, "This code --"  35 Q   You are speaking now of the first complete paragraph  36 on that page?  37 A   First complete paragraph, yes.  38  39 This code I suppose to contain the whole of the  40 law by which the Province is to be governed,  41 criminal as well as civil, to the exclusion of  42 the whole of the English law, as well as the  43 French, except what was contained in the Code  44 itself —  45  46 And he was proposing the possibility of a code of laws  47 for Quebec. 20510  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 -- and the Statutes of Great Britain relating  2 to the custom house duties, and those very few  3 other Statutes that expressly relate to this  4 Colony by name since the Conquest of it, or by  5 the general description of "All his Majesty's  6 dominions, now belonging to the Crown of Great-  7 Britain, or that shall hereafter belong unto  8 the same."  9  10 Q   Thank you.  And you have under tab 138 an opinion of  11 Mr. Yorke who then was the Solicitor-General?  12 A   Yes, that's correct.  13 Q   And he is addressing the question of whether  14 Guadeloupe was to be considered as a plantation or  15 territory belonging to the Queen by conquest.  Now in  16 respect of what we are speaking about, would you refer  17 his lordship to the relevant language, please?  18 A   Yes.  Of course Guadeloupe was a newly conquered  19 colony at that point.  It's -- one of the old Acts of  20 Navigation apply to that after-acquired territory, and  21 it's at the top of page 642.  22 Q   Yes.  23 A  24 The act of navigation refers not only to the  25 plantations and territories belonging to, or in  26 the possession of, the crown at that time --  27  28 And the original Act is 1660.  29  30 -- at that time, but to future acquisitions;  31 and the later acts --  32  33 That is Acts amending the Navigation Act of 1660.  34  35 -- which relax or vary in some respects the  36 provisions of it, are equally extensive.  37  38 Q   And he was the -- in his capacity as the Attorney-  39 General, he gave the opinion with respect to the  40 Royal -- the Royal Proclamation?  41 A   Yes.  42 Q   Now, I want to go onto a subject in which you consider  43 the geographic scope of the provisions relating to the  44 fur trade.  And in respect of that you -- I don't  45 think you have any documents that we haven't seen  46 already.  You make reference to the plan of 1764,  47 which we have seen, and -- 20511  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 THE COURT:  That's tab 139?  2 MR. GOLDIE:  Yes, my lord.  3 THE COURT:  You say this is from the plan of?  4 MR. GOLDIE:  This — what is under tab 139 is simply the  5 appendices --  6 THE COURT:  Yes.  7 MR. GOLDIE:  -- of the plan which we had seen earlier.  8 MR. RUSH:  Yes.  And the plan was what date again?  9 THE WITNESS:  1764, circa June.  10 MR. GOLDIE:  11 Q   Now, with respect to the question of whether the  12 Indian lands provision applicable to the reserve  13 extended to the territories now included in the  14 Province of British Columbia, you considered the  15 identification of the Indian tribes which might be  16 said to be subject to the Proclamation.  What document  17 do you wish to refer us to in respect of that?  18 A   The appendices to the plan which are tabbed separately  19 at 139.  20 Q   Yes.  And just to refresh his lordship's recollection  21 of the plan, this was a document prepared by the Board  22 of Trade after consultation with the Indian  23 superintendents in North America?  24 A   Yes.  25 Q   And what do these two lists refer to?  26 A  Well, they are appendices that come at the end of the  27 plan, and (A) assists the tribes in the northern  28 district of North America, essentially that's north of  29 the Illinois country, and -- or north of the Ohio, I  30 guess.  And (B), a list of the Indian tribes in the  31 southern district of North America.  32 Q   Now, the northern district of North America, that was  33 the district of which Sir William Johnson was the  34 Indian superintendent?  35 A   That's correct.  36 Q   Yes.  And his jurisdiction extended to where?  37 A   I believe it was from the Ohio Valley north.  38 Q   Thank you.  Were all of those tribes that are listed  39 in those two lists, allies of the British during the  40 Seven Years War?  41 A   No.  42 Q   Can you identify any of those or not?  43 MR. RUSH:  And the sources he takes them from.  44 MR. GOLDIE:  Yes.  45 MR. RUSH:  And the sources he takes them from.  46 MR. GOLDIE:  47 Q   Yes. 20512  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 A   The Ottawas I don't believe -- the Ottawas were sort  2 of French allies.  Chippewas are French allies.  3 Q   The document at 141?  4 A   Yes.  5 Q   Is entitled, "A Short Abstract of the Proceedings of  6 Congress held at Detroit", by Colonel Bradstreet in  7 1764.  Would you tell his lordship whether that is a  8 document to which you wish him to refer in relation to  9 the question of who were allies of the French in the  10 Seven Years War?  Does that assist you in answering  11 that question?  12 A   Yes, it does.  The chiefs of the Ottawas and Chippewas  13 met with the Colonel in Detroit.  These were, of  14 course, French allies, and they became -- or  15 acknowledged themselves to be subjects of His Majesty  16 at this time, 7th of September, 1764.  17 Q   Right.  Thank you.  That was under tab 141, my lord.  18 And have you any other -- did you consider any  19 other documents -- some of which we have already  20 referred to in determining -- or considering the  21 question of the tribes that were envisaged in the  22 preamble to the Royal Proclamation?  23 A  Well, of course I looked at traveaux preparetoires.  24 Q   Yes.  25 A   The Board of Trade's review of June 8th, Egremont's  26 letter of May 5th, and so on.  27 Q   Let us --  28 A   But they did not particularly help.  29 Q   In the sense of what, negative or positive?  30 A  Well, very few tribes were mentioned.  The six nations  31 that were mentioned quite a few times, and that, you  32 know, might mean that the Delaware were included  33 because the six nations claim citizenry over the  34 Delaware.  But there were very few tribes, you know,  35 that were mentioned in the travaux preparetoires.  The  36 Creeks and Cherokees, of course, by Pownall in his  37 sketch.  But the only thing near it, a  complete  38 listing, is the plan and one other document that I  39 referred to.  40 Q   Well, just to ensure that I have the documents that  41 you looked at for the purpose of determining what  42 tribes were mentioned, would that include what is  43 under tab 52 in volume 1?  44 A   Yes.  45 Q   And namely the sketch?  46 A   Yes.  47 Q   What is included under tab 58? 20513  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 A   Yes.  2 Q   Which is?  3 A   Board of Trade's report.  4 Q   The Board of Trade's report to Lord Egremont of the  5 8th of June, 1763?  6 A   Yes.  7 Q   What is included under tab 67, which is the Lords of  8 Trade to Egremont of August the 5th, 1763?  9 A   Yes.  10 Q   And finally, you have already referred to the appendix  11 to the plan?  12 A   Yes.  And there is one other document, the -- the  13 document entitled "The Present State of the Northern  14 Indians in the Department of Sir William Johnson  15 Bart."  16 Q   Is that under tab 143?  17 A   Yes, it is.  18 Q   If you could turn to that, please.  Is this the  19 document in which Sir William Johnson is replying to  20 the Board of Trade's requests for his views?  21 A   Yes.  22 Q   In relation to the plan?  23 A   Yeah.  24 Q   And what is the language which you wish to refer to  25 here?  26 A  Well, 143, there is a sort of a covering letter as it  27 were, dated the 13th of November, 1763.  Fifth full  28 paragraph down, he states, and I -- you know, he is  29 transmitting a list of the "several Confederacies in  30 my department".  And that document should be at the  31 end.  Yes, it is.  After the blue page, one finds the  32 enclosure.  33 Q   All right.  34 A  And this is the present state of the northern Indians  35 in the department of Sir William Johnson accompanying  36 that letter of the 13th of November, '63, to the Board  37 of Trade.  38 Q   Yes?  39 A  And I, of course, examined that.  40 Q   And I see in the last page which is -- in the print is  41 584?  42 A   Yes.  43 Q   A reference to the Sioux?  44 A   Yes.  45 Q   And did you endeavour to ascertain with any greater  46 degree of precision, who were being referred to there?  47 A   Yes. 20514  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  F.M. Greenwood (for Province)  In chief by Mr. Goldie  Q   And what do you -- draw his lordship's attention to  with respect to --  MR. RUSH:  Well, it says right there on the document, doesn't  it.  THE COURT:  What does it say?  MR. RUSH:  584.  THE COURT:  I can't read that, Mr. Rush.  MR. GOLDIE:  Yes.  It says:  Sioux number uncertain.  Reside in the country  westward of Mississippi, they are much addicted  to wandering, and live mostly in camps.  And I am asking the witness if he considered whether  that could be described with any greater precision,  and if so, the documents that you wish to draw to his  lordship's attention?  A  Well, aside from looking at secondary sources to try  to pin down the locations of the tribes, and  particularly the Sioux, I looked at a number of maps.  Q   Yes?  A  And in particular, the Mitchell map of 1755 and the  Bowen map, but several others as well.  Q   The Bowen map is the document --  A   Yes.  Q   -- that is --  A   Yeah.  Q   -- on the board there?  A   That's right.  And I discovered that there were --  often the map makers would divide the Sioux into  Eastern Sioux and Western Sioux.  Q   And has that been done on the Bowen map?  A  Well, he has Eastern Sioux but not Western Sioux.  Q   I see.  A   But Mitchell has both, for example.  Q   And are your secondary -- are your references with  respect to that in the footnote under -- numbered 143?  A   Yes.  RUSH:  The footnote under 143, my lord, contains an  extensive commentary, and I object to that in the  footnote, of course, and not the reference to the  document in specific.  GOLDIE:  I am quite prepared to take the last two sentences  of the footnote out.  RUSH:  The last two sentences?  GOLDIE:  Yes.  Isn't that what my friend is referring to?  Over on page 110 --  MR.  MR.  MR.  MR. 20515  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 MR. RUSH:  Well, it starts at the last seven lines on 109 and  2 all of 110.  3 MR. GOLDIE:  4 Q   Well, I will have to settle this with my friend.  5 There are references to documents there.  6 All right, Doctor.  Could we go now to -- you --  7 you have under tab 144, the report of Calvin's case.  8 What is the date of that case, please?  9 A   1608.  10 Q   And you put that in there for the purpose of the  11 source of your consideration of the word "allegiance"?  12 A   Yes.  It was an attempt to demonstrate that allegiance  13 was considered correlated with protection.  14 Q   All right.  We'll leave that.  15 Then your next section, you deal with the question  16 of the identification of British Columbia in 1763.  17 And in support of the opinion that you reached, you  18 considered a number of early explorations.  And under  19 tab 147, you have the -- one of the early reports of  20 the famous Fou-sang -- I won't say controversy.  But  21 the suggestion that Chinese monks had explored a land  22 called Fou-sang many thousands of miles east of China?  23 A   Yes  24 Q   And one of your -- one of your -- the sources that you  25 have in respect of these particular early explorations  26 are referred to in footnotes 145, 146, 147, 148?  27 A   I would like to exclude 146.  28 Q   You exclude 146?  29 A   Yes.  It's a citation but I wasn't able to obtain a  30 copy of that.  31 Q   All right.  32 A   So it would be 145, 147, 148.  33 Q   And then you go on to consider the early explorations  34 of -- on the Westcoast, and you refer to Captain Cook,  35 Juan de Fuca, the Lahontan, the myth, so-called?  36 A   Yes.  37 Q   And the views attributed to de Fonte?  3 8 A   Um-hmm.  39 Q   And your sources for your consideration of those  40 matters are found in footnotes 149 --  41 A   Yes.  42 Q   -- 150, 151, and 152?  43 A   Yes.  44 Q   And then beginning at page 118, Doctor?  4 5 A   Um-hmm.  46 Q   You consider the question of the knowledge --  47 contemporary knowledge of British Columbia by 20516  F.M. Greenwood (for Province)  In chief 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  MR. RUSH:  THE COURT  MR. RUSH:  reference to mid 18th century maps; is that correct?  A   Yes.  Q   And I should have added to your -- the description of  your sources of your material for the voyages of  exploration -- or the knowledge of people in British  Columbia, in the previous section, footnote 153?  A   Yes.  Q   All right.  Now, looking at the question of the -- of  maps, there is under tab 149a, my lord, a map that  your lordship has already seen, it's of the Cook  exploration, Captain Cook's exploration.  Under 154a,  would you tell his lordship what is under that and its  significance, please?  My lord, this is Exhibit 1153-20, it's in Dr.  Farley's.  1153?  20?  THE WITNESS:  I am not certain, but it may be a different  edition.  This is 1794.  It's simply possible it's a  different edition of the map.  MR. GOLDIE:  Q   It is, I believe, the same one that is in Dr.  Farley's.  My friend put a later edition to him in his  cross-examination.  A   I see.  Q   Would you look under tab 154a, please?  A   Yes, I have it here.  I draw your lordship's attention  to the fact that Vancouver Island is not represented.  Q   Yes.  That's been called to his lordship's attention  by Mr. Farley.  A   That's all.  Q   And what do we have under footnote -- or under tab  154a, please?  A   Oh it's Father Castel's map of North America, taken  from the National Archives.  It was produced in  1750-51.  Q   Right.  And can you assist his lordship by telling us  who Father Castel was?  A   I don't know very much about him.  But he was a Roman  Catholic geographer, a Canadien and he got some of his  information from the Verendrye family and their  explorations.  MR. RUSH:  Which?  MR. GOLDIE:  Q   The Verendrye family,  A  And that's the extent of my knowledge of him.  Q   And what do you draw his lordship's attention to on 20517  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 the map itself?  2 A   I think it's probably noteworthy that what appears to  3 be a long range of mountains running north-south, are  4 placed quite near the coast, western coast, although  5 distances are very hard to estimate.  And more  6 important, I think, is that there is a wording written  7 right along the Westcoast, certainly its entire upper  8 half, and it reads, "Cote et Peuples absolument  9 inconnus, meme dans les fables."  10 Q   Yes?  11 A  Which means "Coast and peoples absolutely unknown even  12 in legends."  And that's written right along what we  13 would say today, I suppose, is the British Columbia  14 coast, westcoast.  15 Q   And under tab 156, what do we find there?  16 A  We find a map compiled by Philippe Buache, dated 1752.  17 MR. RUSH:  My lord, that's Exhibit 1153-6 in the cross-  18 examination of Dr. Farley.  19 MR. GOLDIE:  20 Q   Yes.  And what do you wish to draw to his lordship's  21 attention in relation to the knowledge -- contemporary  22 knowledge of what is now known as British Columbia?  23 And by contemporary, of course, I am talking about the  24 mid 18th century?  25 A   Once again, it appears that Vancouver Island is not  26 depicted.  And secondly and most obviously, there is a  27 gigantic Mer de l'Ouest, "Bay to the West", the sea --  28 or the "Bay of the West", running some several  29 hundreds of miles east-west and north-south.  And I  30 think we would agree such a body of water doesn't  31 exist today and it was unlikely to have existed in  32 1752.  33 Q   And under tab 158?  34 A   Yes.  This is a -- a map by J.N. Delisle, 1752, and it  35 also clearly accepts the de Fonte --  36 MR. RUSH:  No, no.  I object to that, my lord.  I think the  37 witness can state what's on the map.  38 THE WITNESS:  Well, it refers to Admiral de Fonte.  39 MR. GOLDIE:  40 Q   That's the reference that's running parallel to the  41 words Lac Bernardi (phonetics) or Bernarda?  42 A   Yes.  43 Q   In the body of water running to the --  44 A   Yes.  45 Q   — north-east?  46 A   Yes.  47 Q   Thank you. 2051?  F.M. Greenwood (for Province)  In chief 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  And also the Mer de l'Ouest appears once again.  MR. GOLDIE:  All right.  My lord, that completes volume 2, and I  tender as Exhibit 1161 with exhibits identified by the  tab numbers running from 105 to 158 as described in  the index at the front of the volume.  Yes, all right.  Well, my lord, only to reiterate the point I made  earlier, that I think it's inappropriate to mark the  cases.  Yes, all right.  Thank you.  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  (EXHIBIT 1161-105:  AND WEST FLORIDA)  (EXHIBIT 1161-111  (EXHIBIT 1161-112  (EXHIBIT 1161-113  TRADE)  (EXHIBIT 1161-120:  COMMENTARIES)  (EXHIBIT 1161-126  (EXHIBIT 1161-128  (EXHIBIT 1161-130  (EXHIBIT 1161-131a  FRAUD...PLANTATION TRADE)  INSTRUCTIONS TO GOVERNORS OF EAST  LABRADOR BOUNDARY CASE)  ACT FOR ESTABLISHING COURTS)  REMARKS ON REPORT OF BOARD OF  SIR WILLIAM BLACKSTONE,  CHARTER OF HUDSON'S BAY COMPANY)  BOARD OF TRADE TO HIS MAJESTY)  ACT OF SUPREMACY)  ACT FOR PREVENTING  (EXHIBIT 1161-131b:  (EXHIBIT 1161-132:  (EXHIBIT 1161-133:  WOODS)  (EXHIBIT 1161-134  (EXHIBIT 1161-135  (EXHIBIT 1161-136  (EXHIBIT 1161-137a  (EXHIBIT 1161-137b  (EXHIBIT 1161-138  (EXHIBIT 1161-139  (EXHIBIT 1161-140  (EXHIBIT 1161-141  ACT FOR ENCOURAGEMENT OF TRADE)  MOLASSES ACT)  ACT FOR THE BETTER PRESERVATION OF  HALL)  CAMPBELL v.  STAMP ACT)  EDWARD NORTHEY TO BOARD OF TRADE)  FRANCIS MASERES OPINION)  MASERES TO SUTTON)  YORKE OPINION)  EXTRACT FROM MANAGEMENT PLAN)  LORDS OF TRADE TO JOHNSON)  ABSTRACT OF PROCEEDINGS OF  CONGRESS HELD AT DETROIT)  (EXHIBIT 1161-143:  JOHNSON TO LORDS OF TRADE AND  ENCLOSURE)  (EXHIBIT 1161-144  (EXHIBIT 1161-147:  (EXHIBIT 1161-149a:  (EXHIBIT 1161-154a:  (EXHIBIT 1161-156:  (EXHIBIT 1161-158:  CALVIN'S CASE)  PARAVEY, M. DE)  CAPTAIN JAMES COOK - MAP)  FATHER CASTEL - MAP)  PHILIPPE BUACHE - MAP)  JOSEPH N. DELISLE - MAP) 20519  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 THE COURT:  Thank you.  Shall we take the afternoon adjournment.  2 MR. GOLDIE:  Thank you, my lord.  3 THE REGISTRAR:  Order in court.  Court stands adjourned for a  4 short recess.  5  6 (PROCEEDINGS ADJOURNED AT 3:00 P.M.)  7  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings herein transcribed to the  12 best of my skill and ability.  13  14  15  16  17 Toni Kerekes, O.R.  18 United Reporting Service LTd.  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 20520  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 (PROCEEDINGS RESUMED AT 3:15)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  Thank you, my lord.  I don't know if it was  6 mentioned, but the De L'isle map under tab 156 was  7 introduced by Dr. Farley as Exhibit 1149-8.  And  8 before I go onto volume 3, I should ask -- I should  9 tender as exhibits the original -- the photo --  10 certified photo reproduction of parts 1 and 2 of the  11 Bowen maps, which are presently before your lordship.  12 A photo reproduction of these, uncoloured, was  13 tendered by Dr. Farley as 1149-12 part 1 and 1149-12  14 part 2, but I think the photographic copy that Dr.  15 Greenwood has described should be separately marked,  16 and I would tender them as the next two exhibits.  17 THE REGISTRAR:  Exhibit 1162.  18 MR. GOLDIE:  Perhaps it could be 1162A and 1162B, and 1162A  19 would be the part 1, which contains the cartouche.  20 THE COURT:  I haven't grasped the significance of the colouring.  21 Do I take it that the original, 1149-12, 1 and 2, were  22 photocopies of the original with colouring but which  23 colouring did not show up on 1149-12?  24 MR. GOLDIE:  25 Q   That's correct.  It's just a black and white  26 reproduction, but this is -- this is -- and the one  27 that Dr. Farley introduced is in turn a copy of the  28 original, the copy being in the National Archives of  29 Canada; is that correct, doctor?  30 A   That's correct.  But I don't know whether Dr. Farley  31 got a copy of the coloured map.  There's only one  32 original coloured map.  This is a photo reproduction  33 of it, but there are other uncoloured versions of the  34 same map.  35 THE COURT:  And the colouring shows what —  36 MR. GOLDIE:  Will you answer his lordship?  37 THE COURT:  — the height of lands of the Apalachians, does it?  38 A   There are pink boundary lines to the colonies, the  39 pink boundary line for Quebec, there's a pink boundary  40 line showing the Apalachian line with the exception of  41 Maryland and Virginia, and pink boundary lines of  42 boundaries of West and East Florida, and this  43 colouring shows the older colonies up to Nova Scotia  44 then in green, and then in yellow there's the Labrador  45 coast and Newfoundland.  46 THE COURT:  I see, all right.  47 A  We'll probably go to that at a later point. 20521  F.M. Greenwood (for Province)  In chief by Mr. Goldie  RUSH:  My lord, just one other point while we're marking  exhibits.  I misspoke with regard to the two maps that  my friend introduced just before the break, and where  they are found in Dr. Farley's cross-examination  volume I indicated I believe that they were numbered  in the 1153 series, but it's been brought to my  attention that it should have been 1154.  COURT:  Well, all right.  GOLDIE: Your lordship will appreciate that my friend put to  Dr. Farley a considerable number of the maps that were  disclosed by the defendant.  COURT:  Yes, all right.  Thank you, Mr. Rush.  REGISTRAR:  1162B.  GOLDIE:  1162 part one is the Bowen map containing the  cartouche with the title "An accurate map of North  America describing and distinguishing the British,  Spanish and French Dominions on this great continent  according to the definitive treaty concluded in Paris  on February 7th, 1763".  And the name Bowen is found  in the cartouche.  My lord, the significance of the  colouring is indicated in the passage that was  referred to by the witness in the report of the Board  of Trade addressed to the king dated June the 8th,  1763 under tab 58.  COURT:  Of volume 1.  GOLDIE:  Of volume 1, and the Board said --  COURT:  I'm sorry, just a minute, Mr. Goldie, please.  What  did you do with my volume 1, please, Miss Thompson.  There it is.  COURT:  Tab 58.  GOLDIE:  Tab 58, my lord, and it's at page 103.  A   103.  GOLDIE: 103 of the internal paging in the upper right-hand  corner.  COURT:  Tab 103, yes.  GOLDIE:  Tab 358, page 103, yes.  And the second-to-last  paragraph on that right-hand column --  COURT:  I'm sorry, Mr. Goldie, I found 102.  Certainly  doesn't look like --  GOLDIE:  There are two page numbers per printed page, 100,  101 and 102, and the right-hand page is 103.  COURT:  All right.  If that's 103 I'll accept your word for  it.  It certainly doesn't look like 103, but if we  have the right page, that's all right.  GOLDIE: Yes, yes. And if your lordship would bear in mind  that this is the map that is being referred to, or at  least the witness will give his reasons for that  1  MR.  2  3  4  5  6  7  8  THE  9  MR.  10  11  12  THE  13  THE  14  MR.  15  16  17  18  19  20  21  22  23  24  25  THE  26  MR.  27  THE  28  29  30  THE  31  MR.  32  33  MR.  34  35  THE  36  MR.  37  38  THE  39  40  MR.  41  42  THE  43  44  45  MR.  46  47 20522  F.M. Greenwood (for Province)  In chief 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  conclusion.  THE COURT:  Yes.  MR. RUSH:  In footnote 1,  document.  MR. GOLDIE:  Yes.  THE COURT  that's what's indicated on the  MR. RUSH:  THE COURT:  MR. GOLDIE  THE COURT:  MR. GOLDIE  THE COURT:  MR.  MR.  MR.  Footnote 1?  But the witness will indicate why this is the  particular map as opposed to variations or other  copies .  Yes, all right.  :  And he says that the report says:  "In order however that Your Majesty may judge with  the greater precision of the Limits of Canada as  above described and also of those We shall propose  for Florida and of the Country we think right to  be left as Indian Territory, we humbly beg leave  to refer to the annex'd Chart in which those  Limits are particularly delineated."  Yes.  :  That was the --  All right, thank you.  :  The second 1162 part B is part 2 of the Bowen map.  We're calling these A and B.  :  Yes.  That's my suggestion.  A with the cartouche.  Yes.  (EXHIBIT 1162 part B - Photo reproduction of Bowen  map with cartouche)  (EXHIBIT 1162 part B - Photo reproduction of Bowen  map)  MR. GOLDIE:  Yes.  Now, doctor, I want you to turn to volume 3  of the documents, please.  THE COURT:  I hate to ask this, Mr. Goldie, how many do you  have?  MR. GOLDIE:  I have six, my lord.  THE COURT:  A third of the way there.  MR. GOLDIE:  The maps take up a lot of space.  THE COURT:  Right.  MR. GOLDIE:  The first map under tab 159 is the Bellin map,  which, my lord, was tendered by Dr. Farley as 1149-14,  and various versions -- not versions of it, but other  copies of it were tendered, some coloured as  GOLDIE  RUSH:  GOLDIE  THE COURT:  MR. RUSH: 20523  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 boundaries that my friend tendered.  2 THE COURT:  Yes.  3 MR. GOLDIE:  4 Q   We needn't look at that, doctor, it has been gone over  5 extensively with Dr. Farley.  I just wanted to obtain  6 from you -- do you have any source of information with  7 respect to Bellin's attitude with respect to the  8 inclusion of the Western Sea in his map under tab 159?  9 A  Well, I can only say that he doesn't depict it as  10 such.  He simply puts in the words "Le Mer de  11 L'Ouest".  12 Q   Yes.  Is there any secondary reference which would  13 indicate -- that you have consulted which would  14 indicate his attitude with respect to that?  15 A   Yes.  I believe it's Wagner's book.  16 MR. GOLDIE:  Now, Wagner, my lord, is referred to in footnote  17 149, and the full citation is "Henry Wagner,  18 Apocryphal Voyages to the Northwest Coast of America,  19 Worchester, Massachusetts, 1931".  And the -- what did  20 you find by consulting Wagner?  21 MR. RUSH:  Well, my lord, I hesitate to rise on this, but I  22 think that my friend made a choice in calling Dr.  23 Farley and qualifying him cartographically in that  24 specialty.  This source was not only referred to,  25 commented on from Dr. Farley's point of expertise, but  26 it was also referred to in his material, and much was  27 made out of Dr. Farley's historical cartographic  28 knowledge, and in my submission the witness here  29 has -- in terms of his expertise, must be  30 differentiated against the expertise that was sought  31 to be led through Dr. Farley, and in my submission  32 this is ground -- the very terrain of which was within  33 Dr. Farley's specialty, and I take objection to this,  34 given that the decision by your lordship to qualify --  35 to accede to arguments by my learned friends to  36 qualify Dr. Farley in a particular area of expertise  37 which related to his cartographic skill.  And your  38 lordship's decision on that is at volume 267, line --  39 or page 19702.  And so I think that the limits of Dr.  40 Greenwood's expertise in this area would be to draw to  41 your attention maps which he has researched and what  42 the map shows.  In terms of looking at the underlying  43 cartographic knowledge, or state of mind, or analysis  44 or whatever of the cartographer, it seems to me that  45 was Dr. Farley's specialty.  4 6    THE COURT:  Well, I wouldn't put it that narrowly, Mr. Rush.  47 Everything you've said is undoubtedly true, but it 20524  F.M. Greenwood (for Province)  In chief 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  presumes that there's no overlapping in the role of a  legal cartographer and a legal historian, and because  something falls within the expertise of a former  doesn't mean that it isn't also part and parcel of the  latter.  MR. RUSH:  It's true, my lord, but you will recall that I urged  upon you, unsuccessfully, that what a cartographer  could do would be to tell you something about the map.  And you distinguished between what a mapmaker  evaluates and what a historian does, and that is to  evaluate documents.  I tried to urge upon you that in  fact a map was a document, and your lordship saw a  distinguishing characteristic to the map, and in my  submission that the historian, by that decision, is in  fact one who can take into account the map as a  document, but to give you any evaluation or assessment  of the map, apart from what your lordship can see from  its very face, I think that does go beyond the  province of the historian, who himself is evaluating  documents on their face.  THE COURT:  I don't know what it is the witness is going to have  reference to, but it seems to me to be self-apparent  that a legal historian, not a cartographer, could see  a notation on a map that would trigger a line of  inquiry or at least excite his curiosity on a  historical fact, even though he's not a cartographer.  I don't know if we're in that area or not.  MR. GOLDIE:  I think we are, my lord, and I'll clarify that.  THE COURT:  All right.  MR. GOLDIE:  The one comment I make is that Dr. Farley was  cross-examined extensively based upon the works of a  historian who talked extensively about maps, that's  Professor Williams.  COURT:  Yes.  RUSH:  But whose specialty was maps.  GOLDIE:  I beg your pardon, not whose specialty was maps, I  THE  MR.  MR.  THE  MR.  THE  MR.  read him as a general historian.  COURT:  I'm sure every historian spends some time with maps.  GOLDIE:  Yes I, agree.  COURT:  I doubt if these two can or should be treated as  being mutually exclusive experts.  I think you will  solve my problem or assist me to solve it if you will  explore it as you have just suggested, Mr. Goldie.  Mr. Rush can --  GOLDIE:  Q   Yes.  Doctor, did you examine any treatises with  respect to -- that have examined the maps, and I had 20525  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  2  3  4  5  6  A  7  Q  8  9  10  A   '  11  12  i  13  ]  14  15  16  17  Q  18  19  A  20  Q  21  22  23  24  25  26  27  A  28  Q  29  30  i  31  A  32  Q  33  34  35  36  A   '  37  THE COURT:  38  A  39  MR. GOLDIE  40  Q  41  A  42  Q  43  A   ]  44  Q  45  a  :  46  Q  47  A  particular regard -- I had identified Henry Wagner's  "Apocryphal Voyages to the Northwest Coast of  America", and is he also the author of the  "Cartography to the Northwest Coast of America to the  year 1800"?  Yes.  And did you find in there any examination of Bellin's  belief or otherwise in the depiction of the Western  Sea on his map?  Well, as I recall it, Wagner simply asserted that  Bellin was sceptical and did not cite any  documentation for that, other than the fact that the  map did not depict the Western Sea, and that it might  be said that Bellin left it over to question that it  was in the Pacific, and then otherwise he did not  produce any evidence, but I relied on his expertise.  And that is in Wagner.  And you refer to that in  footnote 159; is that correct?  Yes.  All right.  Now, under tab 161 we have Vaugondy's map,  and that, my lord, was introduced by Dr. Farley in --  as Exhibit 1149-18, and he has extensively referred to  that, and you have referred to it, doctor, in support  of your conclusions with respect to the knowledge or  lack of knowledge of British Columbia; is that  correct?  Yes.  All right, thank you.  If there is any particular  feature that you want to refer his lordship to, please  do so, but as I say, it has been extensively --  It's probably been dealt with.  Yes.  Under tab 162 is a map which is extracted from  the Gentleman's Magazine, and that document was put to  Dr. Farley by my friend.  Can you tell me where it  came from and what it is?  Well, this is a map by Thomas Kitchen published in --  Sorry, map by Kitchen?  Yes.  Volume 27 of the London Magazine of 1758.  '58?  That's what I have.  You're at 163, I beg your pardon.  Must have misunderstood.  I want you to look under 162, I misdirected you?  XXIV, Gentelman's Magazine, 1754.  Yes.  Whose map is that, please?  I don't know the mapmaker, it's not given, but it 20526  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  2  Q  3  4  A  5  6  7  8  9  Q  10  11  A   '  12  13  14  Q  15  A  16  Q  17  A  18  Q  19  20  A  21  Q  22  i  23  A  24  THE  COURT:  25  26  MR.  GOLDIE  27  Q  28  A  29  Q  30  A  31  32  33  34  35  Q  36  i  37  A  38  Q  39  40  41  42  A  43  MR.  GOLDIE  44  THE  COURT:  45  MR.  GOLDIE  46  THE  COURT:  47  MR.  GOLDIE  reproduces a De L'Isle-Du Fonte map of 1752.  All right, thank you.  Now, please go to 163, which is  the Kitchen map?  Yep.  The map appeared in the London Magazine, 1758,  volume 27.  It depicts the Western Sea and suggests  that -- or seems to suggest that but for a few  cataracts there was a direct water route from Hudson  Bay to the South Sea or the Pacific.  Yes.  Can you find the reference to the cataracts,  please?  Well, it's almost immediately -- almost in the middle  of the map, slightly to the left, and there are sort  of lines drawn.  Oh, yes?  Looks like a railway.  Yes?  There —  Immediately to the left and above the word R -- the  letter R in North -- North America, my lord.  Yes.  There's some lines that run at right angles to the  direction to the course of the river?  Yes.  I'm sorry.  Above -- oh, yes, does say cataracts in  there.  And you say those are cataracts?  I believe so.  Well, I think it says so?  It just says cataracts.  Very hard to read, my lord,  but it does say cataracts slightly to the -- oh, just  above that, actually, and otherwise it seems to be  clear water sailing from Hudson's Bay to the South  Sea.  All right, thank you.  And 165A, this is the Mitchell  map?  Yes.  And that too has been extensively referred to, but in  your footnote 165 you identify sources which provide  you with the biographical details of Mitchell and who  he was?  Yes.  :  Thank you.  What exhibit number is that, please?  :  I beg your pardon, my lord?  What exhibit number was the Mitchell map?  :  The Mitchell map was 1149-10, parts 1 and 2. 20527  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  THE  COURT:  2  MR.  RUSH:  3  MR.  GOLDIE  4  THE  COURT:  5  MR.  GOLDIE  6  7  THE  COURT:  8  THE  regist:  9  MR.  GOLDIE  10  MR.  GOLDIE  11  Q   1  12  13  14  A  15  Q  16  17  18  19  A  20  MR.  RUSH:  21  THE  COURT:  22  MR.  GOLDIE  23  Q  24  1  25  26  A  27  Q  28  i  29  A  30  MR.  GOLDIE  31  32  33  THE  COURT:  34  MR.  GOLDIE  35  THE  regist:  36  THE  COURT:  37  38  39  MR.  GOLDIE  40  MR.  RUSH:  41  42  THE  COURT:  43  MR.  RUSH:  44  45  THE  COURT:  46  MR.  RUSH:  47  THE  COURT:  Thank you.  And 3.  :  And 3, yes, thank you.  Okay.  :  My lord, the registrar reminds me that I have not  asked for a number to be reserved for volume 3.  All right.  RAR:  1163, my lord.  :  63, thank you.  Under tab 6 -- I beg your pardon, 166 is a Jeffreys  publication of a map of the discoveries made by the  Russians on the northwest coast of America?  Yes.  And this too was put to Dr. Farley in  cross-examination, I believe.  And the source of your  information with respect to its original is found in  your footnote 167?  Yes.  For cross-referencing, my lord, it's Exhibit 1154-17.  Thank you.  And under tab 167B in volume 3, we have the  Gentleman's -- the London Magazine of May 17 -- is it  '64?  Yes.  And this contains a version of the map of the Russian  discoveries?  Yes.  :  And that too has been -- Dr. Farley was examined  with respect to that.  Then under tab 168 is  another --  Well, if anyone knows, what was the exhibit number?  :  In the cross-examination?  RAR:  This volume is 163.  No, no, but what exhibit number did this map have on  the other -- this is the one that Dr. Farley said was  inspired conjecture?  :  Yes.  I don't think that was the one, but he said that  about one.  He said one that Alaska looked like this.  I can't be sure, my lord, whether we put that to him  or not.  It wasn't in that form.  Yes.  I'll try and find it.  All right, thank you. 2052?  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 MR. GOLDIE:  2 Q   Well, I'll leave that right now, but doctor, would you  3 look at the map under tab 168.  I don't believe this  4 has been put to Dr. Farley.  This is a Jefferys map of  5 1762?  6 A   Yes.  7 Q   And its origin can be seen as from the Public Archives  8 National Map Collection, and are there any features on  9 that to which you wish to draw his lordship's  10 attention?  11 A  Well, it's -- can be remarked that there's almost  12 nothing cartographically represented on the west  13 coast.  There is a reference to the west coast land,  14 which is supposed to be the Fu sang of the Chinese  15 geographers.  There's a reference somewhat lower down  16 to an entrance discovered by Juan de Fuca in 1592.  It  17 would also be the main features of the map that I  18 bring to his lordship's attention.  19 Q   Thank you.  And this again is all on your  20 consideration of the knowledge or lack of it?  21 A   Yes.  22 MR. RUSH:  My lord, this is 1154-18.  2 3 THE COURT:  Thank you.  24 MR. GOLDIE:  25 Q   I'm obliged to my friend.  And then we have at  26 footnote -- or tab 169 a map that, I think, was put to  27 Dr. Farley by my friend.  And we needn't pause with  28 that.  And you have directed his lordship's attention  29 to the original of the Bowen map, and under tab 170  30 are black and white copies of it; is that correct?  31 A   That's correct.  32 Q   Of the two parts that --  33 A   I haven't pointed out features bearing on ignorance  34 though, to his lordship, on that map.  35 MR. GOLDIE:  Would you do so, please?  36 THE COURT:  Which parts are you looking at?  37 A   I was looking at the western part, or trying to.  38 THE COURT:  The one without —  39 MR. GOLDIE:  40 Q   Without the -- perhaps if you put it down on the easel  41 it might be --  42 A   Bowen did not represent anything on the west coast or  43 northern at 37 degrees.  44 THE COURT:  37 is here?  45 A   The northwest corner of North America, west of Lake of  46 the Woods and north of 37 covered over by an inset and  47 parts unknown. 20529  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  MR.  GOLDIE  2  Q  3  4  5  A  6  Q  7  8  A   '  9  10  11  THE  COURT:  12  A  13  MR.  GOLDIE  14  THE  COURT:  15  A  16  THE  COURT:  17  MR.  GOLDIE  18  THE  COURT:  19  MR.  GOLDIE  20  Q  21  22  23  A  24  Q  25  26  A  27  Q  28  A  29  30  31  32  33  34  35  36  37  38  39  MR.  GOLDIE  40  41  42  43  44  45  46  47  And under 172, tab 172, you have another map of Bowen,  as included in his atlas, of approximately what time,  1752?  Yes.  And the map of the world on the next page, is there  anything you wish his lordship to note there?  Well, he depicted almost nothing for northwestern  North America and did not draw a line to the west  coast north of 52 degrees latitude.  North of 52?  52.  :  In your footnote --  What's the date of this map?  It's 1752.  I don't think I've seen this before, have I?  :  I don't think so, my lord.  No, all right.  In your footnote 173 you quote a secondary source with  respect to communication from the Hudson's Bay Company  to the Board of Trade dated in October 1750?  Yes.  And there is a quotation which you give.  Is that  taken from the secondary source noted in the footnote?  Yes.  Would you read that, please?  Yes:  "A Memorial from the Hudson's Bay Company to the  Board of Trade, dated 3 October 1750, describing  the company's territory to the west of the bay as  extending 'westward to the utmost limits of  those lands, but where or how those lands  terminate to the westward is also unknown, tho'  probably it will be found they terminate on the  great South Sea'."  :  All right.  Now, volume -- turning back to volume 3  under tab 177A, you have an extract from a document  entitled "Statutes Documents and papers Bearing On The  Discussion Respecting The Northern and Western  Boundaries of the Province of Ontario", and compiled  by the direction of the Government of Ontario with  explanatory notes, Toronto, 1878.  Would you tell his  lordship the -- how this document came into being  and -- 20530  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 MR. RUSH:  Which document?  2 MR. GOLDIE:  Under 177A.  3 MR. RUSH:  Thank you.  4 A  Well, it was one of the documents prepared by the  5 Ontario government, or one of the documentary  6 collections prepared by the Ontario government to  7 support its position in the very long drawn out  8 boundary dispute with Manitoba and the federal  9 government over the area west of Fort William.  10 Q   And do you know who actually undertook the research  11 that has resulted in the notes that we find on the  12 particular page that is attached to the frontispiece?  13 A   I don't know all the people responsible for compiling  14 these documents, but one of them, certainly, and one  15 of the major researchers was a David Mills, a member  16 of parliament, Liberal member of parliament, lawyer  17 and a scholar.  18 Q   And just looking at the -- at these notes, and the  19 heading at the top of the page, which is 82, is  20 "Bourgainville On The french Posts 1757".  Would you  21 explain that, please?  22 A   Yes.  This is a list of posts compiled by  23 Bourgainville, who was a military officer in New  24 France, very senior ranking officer, and listed all  25 the fur trading posts, including the posts of the  26 Western Sea, which is at the bottom of page 82.  The  27 post of the Western Sea was sort of a collective term  28 for a series of fur trading posts and fortified posts  29 in the Manitoba lakes area and on the Saskatchewan  30 River.  31 Q   You've referred his lordship to the second-to-last  32 entry there, "Post of the Western Sea (La Mer De  33 L'Ouest)"?  34 A   Yes.  35 Q   When the author of this note says:  36  37 "We have there seven forts built of stockades,  38 trusted, generally, to the care of one or two  39 officers, seven or eight soldiers, and eighty  40 engages Canadiens."  41  42 Are these the words of Bourgainville?  43 A   Yes, translated by the compilers of the Ontario  44 documentary collection.  45 Q   Now, the second-to-last line, however, has the -- or  46 the third-to-last line starts out by stating:  47 20531  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  2  3  4  5  A  6  Q  7  A  8  Q  9  10  A  11  Q  12  A  13  MR.  RUSH:  14  MR.  GOLDIE  15  Q  16  A  17  Q  18  19  20  A  21  Q  22  23  A  24  1  25  Q  26  A   ]  27  Q  28  A  29  1  30  31  Q  32  33  34  35  36  37  A  38  Q  39  A   '  40  MR.  GOLDIE  41  THE  COURT:  42  A  43  MR.  GOLDIE  44  Q  45  A  46  MR.  GOLDIE  47  THE  COURT:  "Fort Poskoia is built on the river" --  And I guess it is "of that name", and then there's  brackets "now Saskatchewan"?  Yes.  Who's responsible for the brackets?  The brackets would be the compilers.  All right, thank you.  And the last line talks about  the Fort des Prairies?  Yes.  Was that ever known by any other name?  It became known as Fort La Corne.  Fort?  La Corne?  La Corne.  Doctor, this introduces your consideration or your  research with respect to the extent of the French  colony known as Canada in the west; is that correct?  Yes.  All right.  And under tab 17 9 you have included the  instructions of -- directed to whom?  These are commission for the -- for Vaudreuil, who was  Governor of Canada.  Right.  Marquis de Vaudreuil.  Was there anything in --  That would be the third full paragraph where the  description of the jurisdiction of Vaudreuil is given,  and on its face it seems fairly vague.  The description being:  "En Canada la Louisiane, Isle-Royale, Isle  Saint-Jean et autres isles, terres et pays de  1'Amerique."  Yeah.  Now, Isle-Royale is an island in Lake Superior?  Well —  :  Or have I got the wrong Isle-Royale?  It's Montreal, isn't it?  Cape Breton.  This is Cape Breton, is it?  Isle Saint-Jean is Prince Edward Island.  :  And Louisiane we'll come to.  I haven't found where -- oh, yes, I see it, I see 20532  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 it.  2 MR. GOLDIE:  3 Q   And you considered the extent of Canada, that is to  4 say referring to the French colony by that name, you  5 considered its western extent?  6 A   Yes.  7 Q   And the documents that bear on that are under tab 180?  8 A   Yes.  9 Q   And again this is an extract from the Ontario papers?  10 A   Yes.  11 Q   Page 378.  And who was Vaisette?  12 A   He was a geographer, French geographer published in  13 1755, and again that in translated form would be the  14 compilers doing a translation.  15 Q   And are you directing his lordship to what follows  16 under-- after the words "Le Canada"?  17 A   "Le Canada", yes.  18 Q   Yes.  And in particular, the last sentence:  19  20 "Its limits on the west extended into countries  21 unknown."  22  23 A   Yes.  24 Q   Thank you.  Tab 181.  What is this, please?  25 A   This is Boucault's report, 1754.  Boucault was an  26 administrator in New France, produced a report  27 describing Canada in 1754, and this again is -- or  28 this isn't taken from the Ontario papers, it's in fact  29 published in the report of the Archives of the  30 Province of Quebec, and I have a footnote reference.  31 Q   Yes.  Well, the footnote reference is number 181.  32 What is the -- what is the reference in the document  33 itself to which you direct his lordship's attention?  34 A   The second paragraph.  35 Q   Yes?  36 A  37 "a l'Ouest par les terres espagnoles et par des  38 terres ou des mers inconnue."  39  40 MR. GOLDIE:  All right.  That's the reference to the west.  41 THE COURT:  "By the lands or seas unknown"?  42 A   Yes, that's the essential --  43 MR. GOLDIE:  44 Q   Now, what is the -- what is the paragraph in which the  45 numbered paragraphs begin?  It begins:  46  47 "Son etendue actuelle comprende" 20533  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 And 1, 2, 3, 4?  2 A   "Canada now comprises".  3 Q   I see.  4 A   L'isle Royale, Labrador, the lands abutting on the St.  5 Lawrence River from its mouth to its source, and all  6 the other tributaries that discharge into it.  7 MR. GOLDIE:  When the -- was there any -- can you throw any  8 light on how far west rivers which discharge into its  9 source would take you?  10 MR. RUSH:  Well, what document —  11 A   I'm not geographically competent to do that.  12 MR. GOLDIE:  13 Q   In that case we needn't pursue the point.  Before I go  14 further, the footnote references to other sources  15 dealing with this question is found in -- well,  16 footnote 175 identifies the source of the Ontario  17 Papers that you looked at?  18 A   Yes.  19 Q   176 is a source that you make reference to with  20 respect to matters of international law?  21 A   Yes.  22 Q   And 177, which contains under tab 177 is  23 Bourgainville's account, but there are also a number  24 of other references there with respect to French  25 possessions in the west?  26 A   Yes.  Dealing with the most westerly fur trading post  27 established in New France.  28 Q   Now, in that footnote reference is made to Jacques  29 Legardeur de St. Pierre, a commandant of the western  30 post and searcher for the Western Sea?  31 A   Yes.  32 Q   And the establishment under the leadership of Joseph  33 Boucher de Niverville of a temporary Fort La  34 Jonquiere?  35 A   Yes.  36 MR. GOLDIE:  From your researches have you anything to say about  37 the existence or otherwise of that fort?  38 MR. RUSH:  Well, my lord, I think the witness should be directed  39 to some source material.  This is all original source  40 work, and some of it was referred to Dr. Farley.  41 THE COURT:  Well, I thought he was being asked "Have you seen  42 anything that indicates the location of that fort".  43 MR. RUSH:  I see.  44 MR. GOLDIE:  45 Q   Yes.  I'm talking -- we're talking about documents,  46 and we're talking about Fort La Jonquiere?  47 A   I don't have it with me, and I don't think we've 20534  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 tabbed it, but I have looked at St. Pierre's account  2 of the supposed establishment of Fort La Jonquiere in  3 the area of the Rockies, I've looked at that.  Shall I  4 give my opinion on that document or --  5 Q   No, no.  6 A   I've looked at that.  7 Q   Have you consulted any other sources, and can you  8 identify them, that deal with the citing of that fort?  9 A  Well, in terms of primary sources, there would be  10 Bourgainville's list of posts, which omits any  11 mention --  12 Q   Yes?  13 A   -- of La Jonquiere and puts the most westerly one as  14 what became known as La Corne, you know, near the  15 forks of the Rocky Mountains.  So those would be the  16 primary sources I've looked at on that point.  17 THE COURT:  Where is it — what fort, La Corne?  18 MR. GOLDIE:  19 Q   Where is it, please?  20 A   La Corne is near the forks of the Saskatchewan.  21 Q   That is the forks of the north and south -- where the  22 north and south Saskatchewan diverge?  23 A   Yes.  The most westerly fort in this complex was Le  24 Corne, established near the forks of the Saskatchewan  25 at about 104 west longitude in 1753 or 1754?  26 Q   Yes?  27 A   Now, over and above those two primary sources, the St.  28 Pierre's account itself and Bourgainville's list of  29 posts, there are a number of secondary sources I  30 consulted on this issue, and they are listed in 177,  31 note 177.  32 Q   Yes?  33 A   They include several biographical articles in the  34 Dictionary of Canadian Biography.  They include the --  35 a modern or recent historical Atlas of Canada, plate  36 40, and several other historians.  37 Q   Whom you name in that footnote?  38 A   I name in that footnote  39 MR. GOLDIE:  Yes, all right.  4 0 THE COURT:  May we adjourn, Mr. Goldie?  41 MR. GOLDIE:  All right, my lord.  Is it 9:30 tomorrow morning,  42 my lord?  43 THE COURT:  Is that convenient?  44 MR. RUSH:  I think that's what we agreed to.  45 THE COURT:  Yes, all right.  And we'll sit until about four  46 o'clock, if necessary.  47 MR. GOLDIE:  Yes, fine. 20535  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1    MR. RUSH:  Fine.  2  3 (PROCEEDINGS ADJOURNED AT 4:00)  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein transcribed to the  8 best of my skill and ability  9  10  11  12    13 Graham D. Parker  14 Official Reporter.  15 United Reporting Service Ltd.  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

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