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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-10-05] British Columbia. Supreme Court Oct 5, 1989

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 20363  Submission by Mr. Grant  1 Vancouver, B.C.  2 October 5, 1989  3  4 (PROCEEDINGS RECONVENED AT 10:00 A.M.)  5  6 THE REGISTRAR:  Order in court.  In the Supreme Court of British  7 Columbia, this 5th day of October, 1989.  Matter of  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lord.  10 THE COURT:  Mr. Grant.  Excuse me a moment.  Yes.  Go ahead, Mr.  11 Grant.  12 MR. GRANT:  Thank you, my lord.  13 I just wish to comment on Exhibit 974-A, which is  14 a binder prepared by the Provincial defendant and  15 entitled "Extracts from Interview Field Notes of Mr.  16 Morrell".  I have -- as you may recall, this was a --  17 your lordship directed that they could take extracts  18 as well at the time that Exhibit 974 was marked the  19 other day.  20 I have two comments to make with respect to this.  21 Firstly, that from my review, I realized why I did --  22 wanted an opportunity to review.  These are not solely  23 extracts from interview field notes of Mr. Morrell.  24 In fact, I think that it would be more properly  25 described that Exhibit 974-A are extracts from the  26 files of Mr. Morrell that he accumulated over his  27 years of research, because it includes, as well as  28 interviews done by himself or persons working under  29 him, it includes a large series of other documents.  30 As an example, tab 2 is a D.F.O. fisherman list of  31 1948 at Moricetown with commentary, and other such  32 documents.  33 In order to avoid any further delay, I don't wish  34 to object -- or make any argument about the  35 admissibility of this at this point, except that I  36 would reserve the right.  And his files, my lord, that  37 were delivered to the other side were, I believe, two  38 or three file boxes, if I recall rightly, of files of  39 the size of the box at the end of counsel table.  And  40 I want -- I had asked, and I will be reviewing these  41 extracts to ensure that they're complete.  And in  42 order to do that, I'll want to review some of these  43 with Mr. Morrell, who is not up north, as you recall.  44 In any event, I would just ask to reserve the  45 right that if there is something that is incomplete,  46 that I may later make a submission that it should be  47 added in as part of the tab.  And secondly, that I 20364  Submission by Mr. Grant  Submission by Mr. Rush  1  2  3  4  5  6  7  THE  COURT:  8  9  MR.  GRANT:  10  11  THE  COURT:  12  MR.  GRANT:  13  14  15  THE  COURT:  16  MR.  GRANT:  17  18  19  20  21  22  23  THE  COURT:  24  MR.  GOLDIE  25  THE  COURT:  26  MR.  GRANT:  27  28  29  30  THE  COURT:  31  32  MR.  GRANT:  33  MR.  GOLDIE  34  THE  COURT:  35  MR.  GOLDIE  36  37  38  THE  COURT:  39  MR.  GRANT:  40  41  42  THE  COURT:  43  MR.  GRANT:  44  THE  COURT:  45  MR.  RUSH:  46  47  would reserve the right that not all of these may  be -- to object to them on the -- some of them on the  basis of relevance, because there's much more than  just interviews, it's extracts from his files.  And  subject to those cautions, I would -- I don't need to  say any more about Exhibit 974-A this week.  Is it an exhibit now or is it for identification  now?  What happened was this number, Exhibit 974-A, was  reserved --  Yes.  -- on Monday when you ruled that Exhibit 974 should  go in.  You indicated that I should advise the court  of my position on Exhibit 974-A now.  All right.  I haven't compared -- my files of Mr. Morrell's are  in my office up north, and I haven't now re-compared  these, but I understand that these files are -- these  documents are ones taken out of the files that were  disclosed in advance of Mr. Morrell giving evidence,  and that's what I understood was Mr. Goldie's position  at the time of Mr. Morrell giving evidence.  I have it now, that 974 and 974-A are both exhibits.  :  Yes.  At trial now.  They are both exhibits at trial.  I just reserve the  right to include a complete document of ones in part  and also to argue relevance of some of the tabs, if it  comes to that.  All right.  Well, subject to what your friends say  about that at the time.  Yes.  To argue the relevance.  :  I only quarrel with the word "right".  Yes.  :  I think my friend can come back and make any  submission he wants to, but he does not have any  right.  Yes, I think that's so.  Yes, I would be -- I don't want it to be taken that  I am agreeing that they are all relevant, that's what  I'm trying to make clear --  Yes.  -- at this point.  Thank you.  Mr. Rush.  Now, my lord, I am returning to the blue binder, and  I had left off at tab 7, and I was at page 16149 in  volume 222, and I was directing your attention here to 20365  Submission by Mr. Rush  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  Ms. Mandell's question at line 21.  THE COURT:  Yes.  MR. RUSH:  Mr. Morrell's -- excuse me, Mr. Morrison's answer at  line 25, and your lordship's interjection at line 34,  after Mr. Morrison points out that he has selected a  number of documents, you say:  THE COURT:  Well, I think we now have ourself into  a position where I think I have to deal  with Mr. Goldie's objection that the  sources having been disclosed, the witness'  role as a researcher does not permit him to  go on and express an opinion on the period  under consideration.  Mr. Goldie then outlines his argument.  And I wanted to direct a few of your lordship's  comments to you.  On page 16150 at your interjection  at line 11 and the observations made at line 28 to 30:  THE COURT:  My recollection simply is if I can  figure out what the evidence means I can't  have a witness tell me what it means.  The argument continues and your lordship interjects  again, the next page, at line 29.  You say:  THE COURT:  Why can't you in the material before me  and in an argument say the situation in the  years 1761 and years prior to Proclamation  was simply -- the situation was simply  this, that the Indians had been --  And then you go on and you summarize what you consider  to be the summary of the evidence there.  Then the next page, my lord, at line 30, you pose  the question to Ms. Mandell:  THE COURT:  Is there anything that he can say that  you can't say in argument?  And then the argument proceeds with ultimately your  lordship making the ruling at 16155 at line 23.  And  you say:  THE COURT:  Thank you.  Well, I'm persuaded that I  should not have the witness summarize his 20366  Submission by Mr. Rush  1 conclusions based upon this documentary  2 material.  3 And you say:  4  5 THE COURT:  I do not base that ruling on any lack  6 of qualifications on the part of the  7 witness.  I don't think you have to have a  8 PhD in history as opposed to years of  9 experience in research to express an  10 historical opinion in proper circumstances,  11 but what I have here is a situation that  12 our American friends have grappled with and  13 have solved the problem for their purposes  14 by the Brandeis brief.  15  16 And then your lordship goes on and makes a comment  17 with regard to the American practise of submissions  18 via a Brandeis brief.  This passage, my lord, is one  19 of your rulings which I included at tab 5 of the same  20 binder.  21 The next page, I would like to refer you to your  22 lordship's comments concluding that ruling at line 22,  23 where you say:  24  25 THE COURT:  I think the role of the experts should  26 be confined as the English Court of Appeal  27 did in R v. Turner (1975) Q.B. 834 to  28 matters where the evidence is of a  29 scientific character which is likely to be  30 outside the experience and knowledge of a  31 judge or jury.  They went on to say that if  32 on the proven facts a judge or a jury can  33 form their own conclusions without help  34 then the opinion of the expert is  35 unnecessary.  36  37 Now then, my lord, I refer you to the next page  38 which, if I may say, is an application of the ruling  39 that your lordship made at that point in time.  Ms.  40 Mandell at line 7 poses the question:  41  42 MS. MANDELL:  43 Q   And could you explain the significance of  44 the letter as you see it with respect to  45 the Royal Proclamation as it's evolving?  46  47 Mr. Goldie interjects: 20367  Submission by Mr. Rush  1  2 MR. GOLDIE:  Well, I object to any suggestion the  3 Royal Proclamation is evolving.  That's  4 pure argument, my lord.  5 THE COURT:  I think in view of my ruling you should  6 ask the witness, Ms. Mandell, what parts of  7 the letter he thinks I should pay  8 particular attention to.  9 MS. MANDELL:  All right.  I'll ask the question as  10 it's just been asked by you.  11 THE COURT:  And give an explanation of anything  12 that isn't patent on the face of it.  13  14 And I just like to pause there, my lord, because here  15 I think you are setting out what it is you are saying,  16 that an historian may comment on, in respect of  17 documents before him:  "What parts of the letter he  18 thinks I should pay particular attention to."  "And  19 give an explanation of anything that isn't patent on  20 the face of it."  21 And I would like to add to that, my lord, that  22 subsequently -- and I think it's wound up in your  23 comments at line 19, that you indicated that a witness  24 could give evidence of context.  25 Then on the next page which is 16179,  26 unfortunately the question is -- or at least the  27 objection is truncated, but we can solve that problem.  28 I will read, my lord, from the portion of the  29 transcript that unfortunately was taken out.  It's Mr.  30 Goldie's objection on the bottom of 16178 after Ms. --  31 Mr. Morrison in answering a question relating to a  32 specific document of July the 1st, 1763.  And Mr.  33 Morrison, at the end of that answer says, and I am  34 quoting at line 41 of the page.  Unfortunately, you do  35 not have it:  36  37 A   Of course at about this time the Indians in  38 actual fact had captured most of those  39 interior posts, although it would appear  40 that the Lords of Trade and the imperial  41 authorities were not yet aware of it.  42 MR. GOLDIE:  My lord, I take exception to that.  43 The document itself says, "acts of  44 hostility with which you will doubtless be  45 acquainted".   Unless the witness is going  46 to direct us to some other source, I don't  47 think it is competent for him to offer that 2036?  Submission by Mr. Rush  1  2  3  4  5  6  7  8  MR.  GOLDIE  9  MR.  RUSH:  10  11  MR.  GOLDIE  12  13  14  MR.  RUSH:  15  MR.  GOLDIE  16  MR.  RUSH:  17  MR.  GOLDIE  18  MR.  RUSH:  19  MR.  GOLDIE  20  MR.  RUSH:  21  22  23  24  25  26  27  28  THE  COURT:  29  MR.  RUSH:  30  THE  COURT:  31  MR.  RUSH:  32  THE  COURT:  33  MR.  RUSH:  34  35  36  37  38  39  40  41  42  43  44  45  46  47  speculation.  THE COURT:  It says, "which you will be acquainted  before the receipt hereof."  MR. GOLDIE:  Yes.  MS. MANDELL:  Q   That's right.  :  Well —  Then, my lord, I am going to direct your attention to  16194.  :  Well excuse me, my lord, but my friend should point  out that the witness is allowed to go on at some  length.  And gives sources.  :  Yes.  And makes reference to sources.  :  And offers --  And speaks of those sources.  :  And offers conclusions.  And does not offer conclusions, with respect, outside  the bound of those sources.  He cites the source, my  lord, and that is what he relies upon.  I would like to go to 16194 and 96, line 32:  MS. MANDELL:  Q   All right.  What's  Sorry, I haven't found that yet.  It's the next page, my lord.  All right.  16194.  Yes.  Miss Mandell at line 33:  Q   All right.  What's the historical  background of the assertion made " the  present and until our further pleasure be  known" on page 198?  MR. GOLDIE:  I take it my friend is asking for the  documents that provide that?  THE COURT:  Well, are you Ms. Mandell?  MS. MANDELL:  No.  THE COURT:  Well, is there historical material  which either answers or bears on that  question?  MS. MANDELL:  Well, you've been referred to some of  it, my lord, and I think that we'll be 20369  Submission by Mr. Rush  1 referring to some more of it, but at this  2 point, in my view, it's a proper question  3 to understand why that phrase is being  4 inserted now.  5 THE COURT:  Well, what you're asking the witness to  6 explain is why those phrases were added?  7 MS. MANDELL:  Yes.  8 THE COURT:  Does — will the witness say that his  9 source of his information is other  10 documents he looked at?  11 MS. MANDELL:  He — yes.  But not — you'll have  12 some of those documents placed before you  13 now and tomorrow, so it's not as if your  14 lordship, it's true, can't see it yourself,  15 but I think there is an historical reason  16 why those phrases are being put in at this  17 time, and the witness will know it.  18 MR. GOLDIE:  Well, my lord, if the witness knows  19 it's so and it's historical it must be in a  20 document.  The witness wasn't there.  21 THE COURT:  I don't think he was there.  22 MR. GOLDIE:  Not as far as I'm aware.  23 A   Not as far as I'm aware.  24 MR. GOLDIE:  So we might as well have the sources  25 of the information.  26  27 Now then, we go on to the next document which is  28 at tab 26-30.  29 Then, my lord, I direct your attention to 16197.  30 And in his answer, Mr. Morrison makes mention of a  31 document of date March 7th, 1768, and he goes on to  32 say at line ten:  33  34 A   ...but I would propose to refer to several  35 topics which are discussed in this  36 representation.  It's summarizing five  37 years of historical events in North America  38 after the promulgation of the Royal  39 Proclamation of 1763.  4 0 THE COURT:  Well, Ms. Mandell, it seems to me that  41 it would be useful to have the witness  42 point out the things that are significant.  43 MS. MANDELL:  Yes.  44 THE COURT:  And I'm happy to have him go that far.  45 I think it's a summary of five years of  46 historical events I don't need an expert.  47 20370  Submission by Mr. Rush  1 THE COURT:  I think that's "if it's a summary".  2 MR. RUSH:  Yes.  3 And then, my lord, at 16211 at line 21:  4  5 THE WITNESS:  Well, I mean —  6  7 This is the witness speaking now:  8  9 THE WITNESS:  Well, I mean obviously the overall  10 question is the Seven Years War.  Some of  11 the specifics, though, I believe, related  12 to the fact that in the lengthy  13 negotiations that went on, [with] the  14 French officials, including the Duke  15 Desoiseau (phonetic) kept trying to  16 establish to the great shock, horror and  17 dismay --  18 MR. GOLDIE:  Well, excuse me, my lord, that's  19 purely the witness' characterization.  What  20 he is talking about is the unsuccessful  21 peace negotiations of 1761, all of which  22 were documented.  23 MS. MANDELL:  My lord, this is historical context.  24 I think that the witness can give his view  25 of it and, if my friend has other evidence  26 to tender or cross, he can do that.  27 MR. GOLDIE:  No, no, I am sorry.  I am entitled to  28 know the facts upon which an expert relies,  29 and if he is going to make any statement, I  30 am entitled to know the document upon which  31 he founds that opinion.  32 THE COURT:  Well, I'll be happy to have him tell  33 you what documents he founds his opinion  34 on.  I frankly am curious enough to want to  35 know about what he is going to tell me.  36 But what is it that the French caused so  37 much consternation about, by trying to  38 establish what?  39  40 And then the witness explains that, and he cites from  41 a document.  And at the conclusion of that, at line  42 11, my lord, it's -- he states, citing the document,  43 "its limits towards the West, extending over countries  44 and nation hitherto undiscovered."  45 MR. GOLDIE:  What page are you on, please?  46 MR. RUSH:  16214.  I'm sorry, my lord, that is a new reference.  47 MR. GOLDIE:  Yes. 20371  Submission by Mr. Rush  1 MR. RUSH:  My mistake.  2 Let me go to that reference.  In -- at line 11,  3 citing the passage, and then going to line 14, the  4 witness adds:  5  6 THE WITNESS:  And the European powers of course  7 were in the habit of claiming enormous --  8  9 And at this point Mr. Goldie interjects:  10  11 MR. GOLDIE:  Well, my lord, I am reluctant to get  12 to my feet once again but we are now  13 reading from something characterized as  14 Unofficial Descriptions of the Boundaries,  15 and this is in most cases, not all, but in  16 most cases after the Royal Proclamation  17 but, whether before or after, is it  18 relevant because the boundary hasn't been  19 fixed?  2 0 THE COURT:  I think we are about to go on to  21 something else.  22 MR. GOLDIE:  I hope so.  23  24 Then, my lord, at 16219, it's the next extract  25 from this after the -- submitting a number of  26 documents, the court at line 31:  27  28 THE COURT:  Now, from tab 11 on, they are for the  29 purpose of showing the Crown's intention  30 with respect to the operation of the Royal  31 Proclamation?  32 MS. MANDELL:  That's right.  33 MR. GOLDIE:  Well, on what principle is my friend  34 tendering those and on what principle is my  35 friend relying on tendering it on that  36 basis?  37 THE COURT:  You are advancing to prove the  38 intention?  39 MS. MANDELL:  Yes, and prove — that's right.  4 0 THE COURT:  Are they capable of proving that  41 intention?  I haven't read any of them.  42 Never seen any of them before.  43 MS. MANDELL:  I hope you will agree with us that  44 they are.  This is -- your lordship is  45 going to be asked to interpret the phrase,  4 6 the Indians with whom we are connected and  47 to live under our protection, and that 20372  Submission by Mr. Rush  1 phrase is one which, in our submission, in  2 interpreting that phrase you are going to  3 be drawn to how the Crown interpreted it  4 themselves in their dealings with the  5 Indian Nations subsequent to 1763 and, in  6 our view, when you do interpret that phrase  7 in light of the documents which you're  8 going to have presented to you, you are  9 going to be urged into a view as to the  10 territorial reach of the Proclamation.  11 THE COURT:  Does it go any further than the  12 category that we just dealt with; that is,  13 that you want these documents in a  14 classification or status where you can use  15 them to support an argument?  16 MS. MANDELL:  Yes.  I would use them to support an  17 argument.  But, you know, my lord, I also  18 say that a great many of these documents  19 must in our submission be seen in their  20 historical context.  It is not the document  21 simply on its face that we intend to rely.  22 THE COURT:  Well, that doesn't trouble me because I  23 have the view that counsel are just as  24 competent to give me the historical context  25 as the witness is even if the counsel is  26 reading from an historical opinion.  27  28 And then, my lord, what follows is an extensive  2 9              exchange between the Court and Ms. Mandell.  And you  30 offer this next observation at line 28, the next page,  31 where you state:  32  33 THE COURT:  If counsel have the facility to rely on  34 the documents to support an argument, and  35 that problem is cleared away, it seems to  36 me there is no advantage to having the  37 witness go through them seriatim  38 laboriously.  39  4 0 And then you go on to indicate how that may be  41 used in argument.  There are some further exchanges  42 and then, my lord, you make this comment at line 17 of  43 page 16222:  "If we" -- starts at 17, but the passage  44 I direct your attention to is at 20:  45  46 THE COURT:  We just have to find a better way to do  47 these things.  And it seems to me that this 20373  Submission by Mr. Rush  1 is in a matter of history.  If we were  2 talking about physics or chemistry, which I  3 don't understand and can't expect to  4 understand even by the written word, I  5 would say that it would have to be  6 explained by a witness, but history is far  7 too vast, far too unspecific and far too  8 unmanageable to have it explained in the  9 witness box.  It has to be proven by  10 documents and it has -- or by -- in the  11 case of an oral history by those who  12 remember it, and explained by counsel, and  13 I see no harm to anyone by taking that  14 easier route.  15  16 And then the next page, my lord, is really your  17 ruling on the subject as of the end of that  18 discussion.  Beginning at line 20 of your lordship's  19 comments:  20  21 THE COURT:  When you are dealing with a matter of  22 history where the evidence flows from  23 documents and which the witness does not  24 have personal knowledge of but is merely  25 using his intellectual advantages to make  26 the selection and explain the significance  27 of them, then it seems to me that the  28 sensible course to follow is to give  29 counsel opportunity to ensure that the  30 right documents are identified, either by  31 being marked as exhibits or by being  32 collected together in some way and  33 identified in that way, and for the  34 significance and the connection between  35 them to be explained by counsel in  36 argument, keeping in mind that counsel in  37 such circumstances is at liberty to read  38 from a briefing paper or opinion of an  39 expert.  40  41 You carry on, my lord.  There is a discussion of  42 Egremont and then you state at line 12:  43  44 THE COURT:  My conclusion, therefore, to which I  45 have driven myself is that I should only be  46 concerned at this stage in ensuring that the  47 documents are in some suitable way made 20374  Submission by Mr. Rush  1 available for you in argument and that is, as I  2 say, that's what I am driven to.  I think  3 however that having regard to the time of day,  4 that it might be useful if, having stated what  5 I have just said, we were to adjourn and resume  6 this tomorrow.  7  8 Well there is an adjournment until tomorrow and  9 the matter is raised again on April the 22nd, and  10 that's at tab 8.  And this is -- on April the 26th at  11 volume 223, and in the morning, my lord, Ms. Mandell  12 seeks to address the subject again, and she makes her  13 argument.  14 Mr. Goldie replies beginning at 16235, and he  15 begins his reply setting out four points that he seeks  16 to make, beginning at line 35.  And on page 16236, at  17 line 9, Mr. Goldie reminds the court that, "there are  18 canons of construction that are applicable to the  19 Royal Proclamation," and he wants to refer you to  20 those.  He refers you to the passages and phrase, and  21 the next page, in Heydon's, and at 16237, at the  22 bottom of the -- after having made his reference to  23 Heydon's case, he says:  24  25 MR. GOLDIE:  If I may pause there, in an ancient  26 document, that is to say, one which came  27 into being beyond living memory, the only  28 way in which one can glean a consideration  29 of the context, the setting in which the  30 disputed words are placed, and the design  31 of the whole statute, is from documents or,  32 as I will later refer to, user.  33  34 Well then he comes to that issue.  He comments  35 again at line 24:  36  37 MR. GOLDIE:  Now, again, that's a matter for the  38 court to determine.  39  40 His argument is:  41  42 No witness is entitled to state what those  43 four points are.  These are aids to  44 construction by the court.  45  46 He then, on the next reference I have, 16239, Mr.  47 Goldie makes his submissions on the question of user. 20375  Submission by Mr. Rush  1 And at line 18, he -- or 17, he says:  2  3 MR. GOLDIE:  I can find no instance of a witness  4 being permitted to say "This is user."  5 What he can do in the case of an ancient  6 document is to bring before the court a  7 document or evidence of usage of the facts  8 of usage, and since no living person can  9 speak of it, the only source is a document.  10  11 And then at the bottom, my lord, he states:  12  13 MR. GOLDIE:  In my submission, the plaintiffs now  14 have an opportunity of placing before your  15 lordship every document which may be of  16 assistance in determining not what was  17 within the minds or what motivated the  18 framers, but which would throw light on the  19 words which your lordship has to construe  20 in the Royal Proclamation itself.  21  22 Of course I would make the same argument in respect of  23 Dr. Greenwood's report.  24 But then your lordship makes the ruling that I  25 have referred you to, following these submissions, at  26 line 16 of page 16243.  And this, my lord, I have  27 already referred you to, it's at tab 2 of this binder.  28 And I -- I direct your attention to your ruling at  29 line 22 where you say:  30  31 THE COURT:  I have an equally settled conviction  32 that when one is coming to determine  33 judicially the meaning and effect of a  34 proclamation, for I equate that to a  35 statute or enactment, it is not competent  36 for a witness to tell me what it means.  It  37 is competent and is expected of counsel to  38 discharge that function.  I do not think I  39 should allow this or any witness to give me  40 a theory of construction.  41  42 And so on.  43 Now, my lord, I direct you to the next page,  44 having made your ruling, at 16244.  Ms. Mandell at  45 line 11 then seeks to pose the next question.  46 THE COURT:  Just a moment, I'm sorry.  I'm sorry, Mr. Rush, I  47 was looking for something else.  You are now going to 20376  Submission by Mr. Rush  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  16244?  MR. RUSH:  Yes.  It's the next page from the ruling your  lordship made.  THE COURT:  Okay.  MR. RUSH:  Line 11:  MS. MANDELL:  Mr. Morrison, are there any  historical facts which indicate the  relationship between the fur trade and the  Indians with whom the Crown was connected  and who lived under their protection in the  period around the Royal Proclamation's  passage?  MR. GOLDIE:  This doesn't conform to your  lordship's ruling.  Historical facts are  the matrix in which the document comes into  being.  We've had those.  Now, as I  understood it, we're into the post-1763 --  THE COURT:  Yes.  MR. GOLDIE:  -- period.  And surely we're not  talking about historical facts.  We're  talking about, if there's anything to be  talked about, is have you got anything  which tells us how the Royal Proclamation  was used, or whatever.  Presumably this is a reference to his use of it.  And  at line 26:  THE COURT:  The problem with the question, Miss  Mandell, is that when you used the words,  around the Proclamation, you're deciding  the very question I have to answer, aren't  you, or are you asking the witness to  decide?  MS. MANDELL: My lord, those words are used in the  documents too and so they're not a term of  art in that sense.  THE COURT:  But you're not asking the witness for  historical facts, you're asking him to draw  a conclusion as to who are the witnesses  with whom His Majesty was connected or  associated, connected I think was the word,  isn't that so?  And then your lordship goes on: 20377  Submission by Mr. Rush  1 You see, we're into this question now  2 because we are dealing with a proclamation  3 which I think is the equivalent of a  4 statute for this purpose.  We're not  5 talking about historical matters generally  6 that are directly in issue in this case.  7 We're talking about historical facts that  8 will aid in the construction of the  9 Proclamation and -- well, I've said that so  10 many times now.  I have great trouble with  11 your question.  12 MS. MANDELL:  Let's try it this way.  13  14 And she attempts a reformulation of the question.  15 Now my next --  16 MR. GOLDIE:  Which was answered.  17 MR. RUSH:  Well yes, of course it was answered.  In comformity  18 with his lordship's direction.  19 At line 37 at page 16258 and nine, my lord, Ms.  20 Mandell formulates the question:  21  22 MS. MANDELL:  Are there any historical facts to  23 which you can draw to the court's attention  24 which indicate how the Indian country or  25 the Indian reserve was used by the Crown  26 through its subjects immediately after the  27 proclamation was enactment?  28  29 "Enact" I think she means to say.  30  31 MR. GOLDIE:  Well, I think that the form of that  32 question is objectionable.  33  34 Says Mr. Goldie's interjection.  35  36 I have no objection to a question what  37 documents do you wish to bring to the  38 court's attention with respect to the use  39 of country.  We're after the event again,  4 0 my lord.  41 MS. MANDELL:  All right.  I have no problem with  42 rephrasing the question.  43 THE COURT:  All right.  44 MS. MANDELL:  What documents do you wish to bring  45 to the court's attention with respect to  46 the Indian country and the Crown's use of  47 it immediately after 1763? 2037?  Submission by Mr. Rush  1 MR. GOLDIE:  No.  The use of country, Indian  2 country calls for a judgment.  That term is  3 one that is going to be debated, my lord.  4 MS. MANDELL:  To the Indian reserve.  5 THE COURT:  Well —  6 MS. MANDELL:  To the area west of the Appalachians.  7 THE COURT:  Well, I think that either you must put  8 the question that way or there must be some  9 definition.  10  11 And then she goes on to define it in the way of the  12 area west of the Appalachians.  13 My point here is, my lord, that wherever there is  14 a question that presupposes some judgment,  15 interpretation, opinion on the part of the witness, an  16 objection is taken and the questioner, Ms. Mandell,  17 conforms to objections and interjections by the court  18 by reformulation of the questions.  19 And the next passage, my lord, is at 16312, line  20 25:  21  22 MS. MANDELL:  23 Q   My lord, the last area of evidence is  24 contained in Volume 2.  My lord, this area  25 of the evidence deals with the land grant  26 provision.  27 And I'd like to first deal with the  28 question of the historical documents  29 relating to the province of Quebec and ask  30 you are there any historical documents  31 which indicate how applications for grants  32 of land in the possession of the Indians  33 were treated in the province of Quebec  34 between 1763 and 1774?  35 A   I made a selection of -- from among the  36 large number of historical documents which  37 deal with this question, and I would begin  38 very quickly at Tab 1, which are the royal  39 instructions to Governor James Murray of  40 Quebec issued on the 7th day of December,  41 1763.  And these —  42  43 And then there is a Registrar interjection, and the  44 witness goes on and cites a passage from the document,  45 at the end of which he states, and I quote:  46  47 THE WITNESS:  And the minutes of the council go on 20379  Submission by Mr. Rush  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  to record the discussions and purchase does  eventually take place.  And I note still  the parallel 75 years later with the  council meetings from --  MR. GOLDIE:  Well, that's a conclusion, my lord.  We'll leave that to Ms. Mandell.  I am sorry, my lord, I've skipped once again.  MR. GOLDIE:  That has nothing do with —  MR. RUSH:  Yes, quite right.  I've referred you to one  interjection at 16312, and the other one quite  separately, my lord, is at 16340.  MR. GOLDIE:  Yes.  The witness goes on and speaks for pages 313,  314, 315, and the first question appearing at 315 at  line 17.  So he proceeds to read from and discuss the  instructions to Governor Murray for some two pages.  MR. RUSH:  He goes on, my lord, and not discusses, but describes  the document.  There is -- with great exception, there  is no opinions offered with respect to those  documents.  In any event, my next reference is at 16340.  Again, here he makes reference to a document.  THE COURT:  16340?  MR. RUSH:  Yes, my lord.  It's the next page.  THE COURT:  Yes, all right.  MR. RUSH:  And I should say, my lord, that the document that is  being referred to was at Mr. Morrison's tab 33.  He  apologizes about the quality of the document,  indicates that it's a document of June 8th and 9th,  1811, between Claus and Johnson.  Cites the document  and then "the parallel 75 years later" at line 22 of  16340, "with the council meetings from --"  MR. GOLDIE:  Well, that's a conclusion, my lord.  We'll leave that to Ms. Mandell.  THE COURT:  All right.  He goes on to the next document.  Now finally, my lord, at tab 9, the proceedings  briefly on April the 27th at volume 224 are found at  this tab.  And I direct your attention to lines --  excuse me, page 16344 and to Ms. Mandell's comments at  what appears to be about line 13, and the question  posed there:  MS. MANDELL:  Mr. Morrison, are you aware or have  you been able to find any historical 20380  Submission by Mr. Rush  1 documents which would indicate that the  2 Crown and/or the Imperial officials took a  3 definitive position as to the boundaries  4 expressed in the Charter to Hudson's Bay  5 Company of 1670?  6 MR. GOLDIE:  I'm sorry, there are two questions  7 there.  One was "Are you aware", and the  8 other one "Have you been able to find  9 documents".  I object to the "Are you  10 aware", I have no objection to the document  11 question.  12 MS. MANDELL:  All right, I'll go with that.  13 THE COURT:  All right.  14 A   I've been unable to find historical  15 documents which indicate that the Crown  16 took a definitive -- or Imperial official  17 took a definitive position as to the  18 boundaries expressed in the Charter of the  19 Hudson's Bay Company.  I think it's a well  20 known historical --  21 MR. GOLDIE:  Excuse me, that's what I object to,  22 because when the witness talks about well  23 known historical facts, I want the  24 documents, otherwise I'm completely at sea.  25 MS. MANDELL:  Well, there will be, we'll make  26 reference to the documents he'll be  27 speaking about, my lord.  2 8 THE COURT:  All right.  There are documents, are  29 there, that you have in mind and the answer  30 you hope to give us?  31  32 And then he goes on, my lord, to make reference to  33 those documents.  34 Now, my argument, my lord, is this:  The extracts  35 from the evidence of Mr. Morrison indicated that he  36 was permitted to give evidence about a document as an  37 historian.  That is to say, to read from a document or  38 to read from passages from it.  He was able to explain  39 the context of that document.  That is to say, the  40 maker, the receiver, the date and places that are  41 referenced in the document.  He was permitted to  42 explain the significant -- significance of any latent  43 ambiguities on the face of the document.  44 Now, if there were opinions given by Mr.  45 Morrison -- and I say that if there were, there were  46 precious few -- it was in respect of those later two  47 areas and related specifically to the documents under 20381  Submission by Mr. Rush  1 consideration.  2 Now, my lord, I think that these extracts  3 demonstrate that objections were taken, objections  4 were sustained, and rulings were made as a whole.  5 That in any case where Mr. Morrison sought to  6 interpret a document, where he sought to draw  7 conclusions from the document, where he sought to  8 provide an opinion about the meaning of a statute  9 about a tree, about a Proclamation, where he was  10 offering his view of larger historical questions over  11 wider historical periods, those were objected to and  12 the evidence was not given in those areas.  13 And in my submission, my lord, when Dr. Lane also  14 in -- qualified as an ethnohistorian -- presented her  15 evidence, she too was constrained to the parameters of  16 those as defined by your lordship's rulings and  17 defined in respect of specific objections that were  18 raised in the course of Mr. Morrison's evidence.  19 Now, in my submission, the evidence of Dr.  20 Greenwood can go no farther.  His evidence, if given  21 viva voce would be inadmissible.  That is, the  22 evidence in the report as it's presently formulated,  23 would be inadmissible if tendered viva voce.  And in  24 my submission -- and I think this is amply shown by  25 the extracts I've referred to your lordship -- that  26 the report is riddled with impermissible conclusions,  27 arguments and opinions on almost every one of its  28 pages.  It's not something that you can easily edit.  29 You can't go to the report with a black pen and start  30 striking out what portions of the report are  31 admissible or not.  You can't separate out the  32 discussion of documents -- or the description of  33 documents from his opinions on them, because in  34 respect of each and every one of those documents, it's  35 my submission, he offers an opinion or an  36 interpretation.  And I say he is essentially  37 presenting the opinion, he is presenting the  38 interpretation that the Crown and Province is going to  39 make at the end of the case in its argument, and  40 that's where it should be made.  41 I say the defendants cannot use a written report  42 as their device to get impermissible opinions and  43 arguments before the court when they wouldn't  44 otherwise be admitted.  And I think, in my submission,  45 it would be prejudicial to place the document before  46 your lordship and use it as some kind of reference  47 point or guide in the leading of the viva voce 20382  Submission by Mr. Rush  1 evidence when the viva voce evidence should be  2 restricted to the consideration and description of  3 documents and their context.  4 Your lordship has had the report in front of you  5 and I know you haven't referred to the report itself,  6 but I think it would be useful for you to see the wide  7 sweep of the areas and types of documents that are  8 considered by the report under the various subject  9 headings.  And for that purpose, I think it would be  10 useful for you to have a look at the Table of  11 Contents.  And I say, my lord, that the Table of  12 Contents amply demonstrates the intent of the witness  13 in directing his research considerations and his  14 opinions to various particular documents, treaties,  15 documents which were documents that were  16 chronologically situated prior to the passing of the  17 proclamation.  And then Part 3, you will see, is a  18 consideration "Of the Geographic Reach of the Indian  19 Provisions".  And then Dr. Greenwood's efforts in Part  20 4, which you will see runs for almost a page and a  21 half, to give his views on "The Indians Lands  22 Provisions Applicable to the Reserve".  And my lord,  23 that, as I say, runs over onto the second page, and  24 then he gives his general conclusions.  He goes into  25 the Quebec Act and various other documents.  And I  26 think that that demonstrates the full scope of what is  27 intended by this report.  28 Now, my lord, in the case of Mr. Morrell's  29 evidence, Mr. Morrell's report, after having gone  30 through a similar process as I have taken you through  31 here, you ruled, without examining the report, that  32 you would not receive the report because it was filled  33 with argument and that parts of it were irrelevant.  34 And I want to refer your lordship to the decision that  35 you made there and it's in -- I don't think I appended  36 that as part of the binder I handed up to you, but  37 I'll give you the extract from volume 207.  38 THE COURT:  You may prove me wrong, Mr. Rush, but my  39 recollection of Mr. Morrell's problem was largely  40 whether it arose out of the pleadings.  41 MR. RUSH:  Well, I don't know if I'll prove you wrong or right  42 on this point, my lord, but I'll simply direct you to  43 your lordship's ruling.  44 And again, keeping in mind, my lord, that you did  45 not have -- you did not review the report, you say at  46 line 21 -- unfortunately I don't have the exact page  47 reference. 20383  Submission by Mr. Rush  1 THE COURT:  Looks like something 846.  2 MR. RUSH:  The page number is cut off at the top.  I can get the  3 exact page number for you.  You say at 21:  4  5 THE COURT:  Thank you.  I am not troubled by Mr.  6 Morrell's qualifications to express  7 opinions on fisheries matters even if they  8 include some historical or anthropological  9 components.  Ten years work in the field is  10 a sufficient exposure to the primary  11 fisheries discipline he follows to permit  12 him to express fisheries opinions which may  13 include some inter-disciplinary content.  14 I am constrained to conclude,  15 however, that Mr. Morrell's report, which  16 Mr. Grant puts forward as a summary of an  17 opinion under Section 10 of the Evidence  18 Act, cannot at this time be admitted into  19 evidence, because it and its appendices are  20 so heavily laced with arguments that are  21 inadmissible hearsay and projections of  22 forecasts on better or future systems or  23 fishery management that they fall within  24 that limited class of cases where judges of  25 this court have recently felt impelled to  26 rule against their admissibility partly on  27 the ground of them being argumentative and  28 partly on the ground of their relevance.  I  29 tend to accept Mr. Macaulay's submission.  30  31 MR. GOLDIE:  Well, I think you should read the rest of that.  32 Because that -- it will certainly be my submission  33 that that's the thrust of your lordship's argument.  34 MR. RUSH:  Well, the thrust of your lordship's argument is right  35 there in line 39:  36  37 ...their admissibility partly on the ground  38 of them being argumentative and partly on  39 the ground of their relevance.  I tend to  40 accept Mr. Macaulay's submission that the  41 wisdom or the values of federal fisheries  42 and other federal legislation are not  43 relevant issues at this trial.  44  45 That, surely, is the ground of relevance.  46  47 As I held in the reasons for judgment 20384  Submission by Mr. Rush  1 I delivered in this action on February 18th  2 of last year this does not mean that Mr.  3 Morrell cannot give any evidence in this  4 case.  I am sure he can.  At the opening of  5 his examination of this witness Mr. Grant  6 described the areas in which he expected to  7 adduce expert or opinion evidence from Mr.  8 Morrell.  I think he can give evidence  9 subject to all these exceptions on those  10 areas, or most of them.  He can, for  11 example, tell me, if asked, about the  12 actual present Gitksan and Wet'suwet'en  13 fishing practices and about the impact of  14 actual fishing -- fisheries practices  15 outside the claimed territory.  I cannot  16 rule on the admissibility of historical  17 practices as that question must depend upon  18 the sources of his information upon which I  19 shall hear from counsel as the evidence  20 proceeds.  21 In brief, I think that the opinion  22 report if it is to be filed must be recast,  23 but I see no reason why Mr. Morrell should  24 not be examined generally upon the subject  25 matters -- upon the admissibility subject  26 matters described by Mr. Grant unless it  27 transpires that those opinions are -- come  28 as a matter of genuine surprise to counsel  29 because of their complete absence from the  30 report, which I understand has been in the  31 hands of the defendants for sometime, on  32 which I am disposed to treat as notice of  33 the general tenor of the evidence which  34 will be adduced.  35  36 My lord, what you are saying, as I interpret your  37 lordship's reasons, is, while the report may not go  38 in, Mr. Grant, you can lead the evidence viva voce and  39 endeavour to lead the evidence to conform with your  40 ruling with Mr. Morrell on the witness stand.  But  41 there is no question your decision is based on the  42 fact that the report itself contained arguments which  43 your lordship had found to be inadmissible.  44 Now, you say there that you felt that Mr.  45 Morrell's report fell into that limited number of  46 cases where judges have ruled recently against the  47 admitting -- the admissibility of those reports.  But 20385  Submission by Mr. Rush  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  I dare say, my lord, that those cases are directly on  point with respect to the report that's tendered here  as Dr. Greenwood's opinion report, and these cases  were argued extensively by the defendants in that --  in terms of Mr. Morrell's evidence, and in respect of  other witnesses.  But I simply want to refer you to  some of those cases, and I am sure your lordship has  heard these perhaps more often than you would wish,  but these were submitted as part of a binder of  Provincial authorities on expert witnesses, and I make  reference to that now.  The first is your lordship's own decision in  Sengbusch v. Priest, and your lordship's decision in  that case, which is at tab 6 of that binder, was found  at page 40 where you said simply --  THE COURT:  Yes, go ahead.  MR. RUSH:  I can provide your lordship with my copies.  THE COURT:  No, no.  I will follow you.  MR. RUSH:  At page 40 of that decision, my lord, and it's your  comment:  "It is unnecessary" -- considering R. v.  Turner, considering the psychological report that was  before you, you said simply:  It is unnecessary, however, for experts to  perform the court's function or for counsel to  adduce arguments in the guise of evidence.  That report, my lord, is an argument.  That's an  argument that you will hear at the end of the day.  It  is, in its most constrained form, evidence.  The vast  body of that material in that argument renders  opinions which you are going to hear argued by my  learned friends.  Secondly, the Emil Anderson v. B.C. Rail case.  This is at tab 7 of that binder.  Mr. Justice  Macdonald, considering the report that came before him  there, and what he says, my lord, that I think is  particularly pertinent here, at page 32, and I will  read from that:  I considered the possibility of editing the  report to remove those portions which are not  admissible as I did in Litwin Construction  (1973) Ltd. v. Kiss (1985), 66 B.C.L.R. 337  (S.C.).  That would be impractical here, not  only due to the volume of the report itself but  because the offending portions are, as W.T.C 20386  Submission by Mr. Rush  1 puts it, "on almost every page".  2 The underlying difficulty is that the  3 report was neither conceived nor prepared on a  4 basis appropriate for admission under s. 10 of  5 the Act.  It is a document such as an engineer  6 might provide to an owner faced with a claim by  7 a contractor for extra work or damages.  It is  8 an "assessment" of the claims of W.T.C. in this  9 action.  In the course of that assessment,  10 opinions are expressed.  However, those  11 opinions are so mixed with evidence which is  12 inadmissible that they are themselves not  13 admissible in their present form.  14  15 His lordship then goes on to consider a number of  16 difficulties, some of which -- I won't cite them  17 all -- some are not relevant particularly to my  18 argument, but two of them are:  19  20 (c)  Many opinions are expressed as to the  21 proper interpretation of the contract in issue  22 here and as to construction law generally.  23 Those are questions of law for determination by  24 the court.  25 (f)  Viewed in its totality --  26  27 This is page 33:  28  29 -- the report is more appropriate as argument  30 than it is as evidence.  It is argument  31 prepared by engineers under legal direction,  32 rather than by lawyers with the benefit of  33 engineering advice.  That does not make it any  34 the less effective as argument.  Quite the  35 contrary.  However, this is not the stage for  36 hearing argument.  37  38 Now, my lord, there is a second Emil Anderson  39 case.  I think it in substance arrives at the same  40 conclusions.  I needn't refer you to that.  But I do  41 ask you to take into account that it's again a Mr.  42 Justice Macdonald decision at tab 8.  43 And then there is the decision at tab 9 in  44 Quintette v. Bow Valley, decision of Mr. Justice  45 Spencer.  Now Mr. Justice Spencer, in examining the  46 reports that came before him -- again, a lengthy case  47 dealing with voluminous reports of experts -- he went 20387  Submission by Mr. Rush  1 on to say this at page 3 of this unreported judgment:  2  3 The report at present is too voluminous and  4 too full of objectionable material to make it  5 feasible to go through it and rule on it page  6 by page.  So I confine myself to re-stating  7 those things which an expert may and may not  8 do, as I understand the principles of law  9 involved.  I do not purport to re-state them  10 exhaustively but only for the purposes of this  11 witness's evidence at this point in the trial.  12 There may be other specific matters to which  13 the expert may or may not testify which will  14 become relevant later on, and counsel may raise  15 them then.  For the time being I state Mr.  16 Rennie's role as follows:  17  18 And then he goes through, my lord, in numbers 1  19 through 8, detailing what are the permissible limits  20 for the admissibility of expert opinion.  And they  21 near, in terms of their parallel -- the parallel  22 nature of that case to this one, with the principles  23 enunciated by your lordship.  24 And then he concludes at page 5:  25  26 Mr. Rennie's report, as presently tendered,  27 is not admissible.  Hopefully the time and  28 expense which have gone into its preparation  29 will not all be wasted, but some portions of it  30 may be re-tendered in proper form as an  31 expert's opinion, and others may be  32 incorporated subsequently into counsel's  33 argument  34  35 Now, my lord, in my submission, the report in its  36 present form is not admissible.  It is, in essence, an  37 argument.  It contains inadmissible opinions of every  38 nature.  They appear page by page throughout the  39 report and, in my submission, this is not a time for  40 argument.  This -- these issues, these arguments,  41 these views of the authorities and of the documents  42 will be submitted, I suppose, most strenuously to you  43 at the time that argument arrives.  And in my  44 submission, this is not a question for evidence.  The  45 report is not in itself admissible and, in my  46 submission, if evidence is sought to be led from this  47 witness, it should be led through documents and the 203?  Submission by Ms. Russell  Submission by Mr. Goldie  1 witness' description of the documents and the  2 confinement of the witness' evidence to the kinds of  3 evidence and along the rulings of the principles set  4 out by your lordship with regard to Mr. Morrison.  5 THE COURT:  Thank you.  Ms. Russell?  6 MS. RUSSELL:  My lord, I have a very brief submission to make.  7 I'm sure Mr. Goldie will make full reply to Mr. Rush.  8 I think all I need to say is your lordship is well  9 aware of the evidence adduced by the plaintiffs  10 through such witnesses as Dr. Ray, Galois, Morrison  11 and Lane.  And your lordship is also aware of the  12 problem of interpreted evidence and argument  13 intermingled with evidence.  Such reports as Mr.  14 Brody's, to which we took serious exception and listed  15 extracts and put them before you, and you have decided  16 in your wisdom to admit those reports and to consider  17 all of this at the end of the day.  And I think that  18 your reasons given and placed at tab 1 of Mr. Rush's  19 submissions at page 18, say very neatly, and that is,  20 that, "Generally speaking --"  21 THE COURT:  Page?  22 MS. RUSSELL:  Page 18, tab 1 of Mr. Rush's submissions.  You  23 say:  24  25 Generally speaking, therefore, I can have  26 regard to the opinions the historians have  27 expressed about the facts they think the  28 documents are describing, and in some cases why  29 they think such things were happening, and the  30 consequences of these historical events even  31 though their evidence will in most cases be  32 based upon inferences drawn from statements  33 found in the ancient documents.  Impermissible  34 opinions and the conclusions they wish me to  35 reach in connection with the subject matters of  36 their opinion will undoubtedly be interwoven  37 with permissible opinion, and it will be my  38 responsibility to disregard the former while  39 profiting from the latter.  40  41 I think that says it very neatly, my lord, and  42 that you are able to do that with respect to Dr.  43 Greenwood's report.  44 THE COURT:  Thank you.  Mr. Goldie.  45 MR. GOLDIE:  Thank you, my lord.  46 My lord, as Ms. Russell has indicated, the issue  47 is whether the witness should be allowed to proceed by 20389  Submission by Mr. Goldie  1 reference to his report or whether he and the court  2 are being deprived of the assistance, sight unseen, of  3 his report.  4 If Dr. Greenwood's report is excluded in total it  5 would be the first time such a step has been taken in  6 this trial.  Mr. Morrell's report, as it was tendered,  7 was rejected, in my submission, because it contained  8 an attack on the Department of Fisheries regulation,  9 which Mr. Macaulay successfully submitted was  10 irrelevant, and because it contained a large part  11 dealing with future regulation of the fisheries.  In  12 fact, a good part of his report came in, in the course  13 of his evidence, marked as individual exhibits.  14 Now, the defendants here elected not to file  15 reports by Mr. Morrison or Dr. Lane.  Reports were  16 filed by Professor Ray, Dr. Galois, Mr. Brody, Dr.  17 Daly, Mrs. Harris and so on.  Some of these reports  18 were objected to in whole or in part.  The objections  19 were taken, and in some cases, to the reports as a  20 whole, and these were all overruled, and Ms. Russell  21 has referred your lordship to that.  22 I just wish to emphasize in your lordship's ruling  23 of July the 14th, 1989, in Mr. Rush's material, page  24 16, line 22:  25  26 In this case the parties wish to establish  27 many historical details such as the context in  28 which the Royal Proclamation of 1763 was  29 issued.  30  31 And then over on page 17, lines 16 -- or line 14:  32  33 Such opinions will be most useful, if not  34 invaluable, in placing historical events or  35 occurrences in context.  36  37 And your lordship has made the same observation  38 with respect to context in one of the rulings made in  39 the course of Mr. Morrison's evidence.  And I  40 emphasize that Mr. Morrison's evidence was given  41 without a report.  The reference I have in mind is  42 16123 -- I am sorry, 223 in volume 222 under tab 7 of  43 Mr. Rush's collection.  Yes, 223, where you said at  44 line 30, "for the significance and the connection  45 between."  4 6    THE COURT:  I haven't found that.  Tab 7?  47    MR. GOLDIE:  Tab 7, page 16223, "for the significance and the 20390  Submission by Mr. Goldie  1 connection between them."  2 Now, many of the statements that my friend  3 objects to, as I hope to show, are in fact contextual  4 not textual.  I make the distinction between an  5 opinion with respect to text which is textual, and  6 which is objectionable, and which -- and those which  7 are contextual.  And of course my friend is taking the  8 statements he objects to, using the word in another  9 sense out of context, because your lordship has not  10 seen the report.  They occur in a context not isolated  11 and open to misunderstanding.  12 The -- with Mr. Morrison giving his evidence  13 orally, there -- and without a report, there was no  14 way of knowing what the context was.  And under --  15 under my friend's tab 9, we have an example of this.  16 At page 16344 and at line 29 I said:  17  18 MR. GOLDIE:  That's what I object to, because when  19 the witness talks about well known historical  20 facts, I want the documents, otherwise I'm  21 completely at sea.  22  23 And at that point, the -- and a couple of other  24 points in the trial, the documents simply weren't  25 available and I was asking for identification of them.  26 Now, in a report, the context is immediately  27 apparent.  There is another example I wish to give.  28 Well, I can come back to that later.  29 The proposition that an expert -- that Mr.  30 Morrison was not allowed to give any opinions but was  31 just allowed to refer to documents and to link them  32 is, of course, erroneous.  Mr. Morrison gave a large  33 number of comments.  He even referred to the Labrador  34 boundary case which my friend takes exception to in  35 the case of Dr. Greenwood.  In volume 222 at page  36 16215, he was asked the source of the document at tab  37 3.  This is line 7.  Line 9 he said:  38  39 A   It is from a published compilation which  40 was used -- I mean a similar one was when  41 the dispute over the Labrador boundary,  42 various historical documents were collected  43 and bound together and printed as an aid  44 when the -- in this case, the particular  45 discussion went all the way to the privy  46 council or the Judicial Committee of the  47 Privy Council, and a number of these 20391  Submission by Mr. Goldie  1 historical documents are...used in those  2 cases and it was a -- it involved Canada,  3 Ontario, Manitoba, in particular.  4 Q   This was the Labrador boundary?  5 A   No.  This one right here [the one he was  6 referring to], the northern and western  7 boundary of Ontario involved the Ontario  8 boundary.  9  10 Well, Mr. -- Dr. Greenwood uses the same source of  11 materials.  12 Mr. Morrison offered opinions and he offered lots  13 of them.  The -- at volume 222, page 16212, it's not  14 in my friend's -- not in my friend's present  15 collection, the page is omitted.  Mr. Morrison gives  16 this answer in reference to maps:  17  18 A  And the second one is the famous  19 Bartholomew DeFonte, and on the Bowen map  20 which was looked at earlier, there was the  21 reference to the Lac DeFonte, and DeFonte  22 was a nonexistent person but apocryphal  23 account of the Geography of North America  24 had considerable influence and had appeared  25 on several 18th century maps --  26  27 And so on.  That's a conclusion and an opinion.  He  28 construed documents.  29 I refer to my friend's collection, volume -- under  30 tab 7 at page 16157, line 26, the answer:  31  32 A   Thomas Fitch down below.  He's the governor  33 of Virginia.  And in the second letter,  34 which is dated the same day, there's  35 reference made to, and it explains what is  36 set out in the covering letter to Amherst,  37 explains that some people from Connecticut  38 have been under pretended purchases from  39 the Indians, that is making -- have been  40 settling in the neighbourhood of the  41 Susquehannah and Delaware Rivers, which  42 settlements -- which settlements appeared  43 to be contrary to the Indians, and such  44 settlement threatens Indian war.  45  46 And so on.  That's -- in my friend's eyes, that's a  47 construing of the document. 20392  Submission by Mr. Goldie  1 Now, where a report has a mixture of argument and  2 opinion, your lordship has stated that it is you who  3 will set them aside and separate them.  I give your  4 lordship one very simple example, and I deliberately  5 chose it as a simple one.  It's Dr. Galois' report,  6 and at page 1442, he is talking about events at  7 Hazelton in 1889.  And he said that:  8  9 Captain Fitzstubbs and two of the special  10 constables remained at Hazelton.  They provided  11 an official presence in the area until a more  12 permanent solution to the problem of Indian  13 hostility could be found.  In 1889, this  14 solution took on an administrative form.  The  15 Federal government established the Babine  16 Indian Agency.  17  18 And at page 47 he says:  19  20 The ultimate consequence of these Indian  21 Gitksan protests was the establishment in 1889  22 of the Babine Indian Agency.  23  24 Now, consequence is either a question of fact or  25 it's a question of opinion.  There are no documents  26 saying this was done as a consequence.  That was his  27 opinion.  That was his argument.  28 So in my submission, if your lordship is going to  29 undertake to respond to my friend's objections at this  30 stage, one must go to the report itself.  31 And before I deal with my friend's specific  32 objections in the terms that he has made them, I  33 should tell your lordship that this report, in its  34 basic form as the witness has testified, was that of  35 July 1986.  He filed a summary in accordance with the  36 court's directions in October of 1986, and to my  37 recollection, he was the only witness who did so.  Mr.  38 Morrison's summary was not filed until March of 1987.  39 The delay in completing the -- or incorporating  40 into Dr. Greenwood's report the material that he had  41 assembled between July '86 and this year was, again,  42 delayed because of Mr. Robertson's death.  But  43 essentially, the -- his report was indicated in his  44 summary which was filed before any of the summaries of  45 the plaintiffs' experts were filed.  46 Under tab 6 of my friend's compilation, he sets  47 out a large number of pages, and the conception -- the 20393  Submission by Mr. Goldie  1 misconceptions -- when I say a large number of pages,  2 he has some 32 pages in which he purports to set out  3 the objections from the report.  The misconceptions  4 that he is labouring under are found first from the  5 title -- and I'm looking at page 1 of his -- under tab  6 6.  He says:  7  8 This title indicates that the purpose of the  9 report is to determine the intention of the  10 framers of the Royal Proclamation.  11  12 And that misconception extends to a large number of  13 the references that he has in his compilation.  For  14 instance, page 5, item 27 (i):  15  16 i)  Did the framers of the Royal Proclamation  17 intend --  18  19 And he underlines the word "intend".  20 Item 28, "ascribe to the framers any intention to  21 prescribe".  He is quoting from the report.  22 And page -- item 31:  23  24 P.101 - "In summary, it appears that the  25 framers -- "  26  27 So on and so forth --  28  29 "-- had no intention of extending them to..."  30  31 And item 32 again refers to intention.  What is being  32 referred to there is intention as a question of fact,  33 not intention in terms of law.  Is there an intention  34 in terms of fact?  And that can only be demonstrated  35 by reference to the documents which are there.  36 The word "intention", and in my friend's  37 submission, is taken out of context.  It is not the  38 intention of the King, in the legal sense.  It is an  39 intention to be gleaned from the words of documents.  40 Now we long ago passed the question of relevance  41 of such factual intention.  Many, many of Mr.  42 Morrison's documents deal with intention.  There is a  43 whole package of them, the Travaux Preparetoires of  44 the Royal Proclamation itself, these have all been  45 admitted.  They all deal with the question of  46 intention as a matter of fact, and that is referred to  47 by your lordship in your ruling of July 14th at page 20394  Submission by Mr. Goldie  1 17, line 27, where you say, "many useful opinions,  2 based upon inferences from the documents about  3 recorded facts of history".  And I say an opinion with  4 respect to the nature of the factual question of  5 intention of the framers falls precisely within that  6 description.  7 Now, a second category objected to by my friend  8 comes from when the witness sets out a legal  9 interpretation, usually of others, and tests that by  10 the historical facts which he documents.  An  11 outstanding example of that is found at page 155 of  12 Mr. -- of Dr. Greenwood's report.  I should start with  13 a partial reference to this made by my friend at page  14 26 of his tab 6.  I'm sorry.  He states, apparently,  15 it being objectionable, item 9:  16  17 P.155 - "In the case of White & Bob, Norris  18 J.A. founded his opinion on the assumption that  19 the framers were eager to expand the empire to  20 the Westcoast."  21  22 He then cites an extensive passage from White  23 & Bob and states:  "I submit, with all due  24 respect that this was a misreading..."  25  26 Now, the passage to which Dr. Greenwood referred  27 is set out at page 155, and contains this sentence,  2 8 and I quote:  29  30 The Proclamation is to be construed in  31 accordance with the common understanding of  32 the British expansionists of those days, who  33 claimed the extension of dominion not in the  34 terms of precise definition or of survey or of  35 British settlement.  36  37 Mr. Justice Norris advising, as a matter of law, there  38 is a question of fact as to what British  39 expansionists, whoever they may be, what their common  40 understanding was, and whether, in fact -- and I  41 emphasize the words "in fact" -- it was that  42 understanding which the framers adopted.  And that is  43 what Dr. Greenwood is addressing.  44 THE COURT:  Is it convenient to interrupt your argument and take  45 the morning adjournment?  46 MR. GOLDIE:  That's fine, my lord.  47 THE REGISTRAR:  Order in court.  Court stands adjourned for a 20395  Submission by Mr. Goldie  1 short recess.  2  3 (PROCEEDINGS ADJOURNED AT 11:15 A.M.)  4  5  6  7 I hereby certify the foregoing to be  8 a true and accurate transcript of the  9 proceedings herein transcribed to the  10 best of my skill and ability.  11  12  13  14  15 Toni Kerekes, O.R.  16 United Reporting Service Ltd.  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 20396  Submissions by Mr. Goldie  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  Mr. Goldie.  4 MR. GOLDIE:  My lord, I had referred your lordship to the  5 proposition that a judge of the court of appeal had  6 stated that the Royal Proclamation was to be construed  7 in terms of expansionous views and Dr. Greenwood was  8 addressing the factual question of what those views  9 were.  And I want to refer to another part of my  10 friend's brief where he incorporates a submission of  11 mine that was made at page -- Volume 223 at page 16239  12 and which illustrates the basis of many of the  13 concerns that I had about Mr. Morrison's evidence.  14 And it is the difference between the factual existence  15 of an intention objectively defined and motivation,  16 and I said this, beginning at line 6:  17  18 What my friend wants to do is to have somebody,  19 and I don't -- I don't talk about qualification  20 at the present time, but have somebody tell  21 your lordship not what the document -- he wants  22 to inform your lordship of the minds of the  23 framers.  And an example was given yesterday  24 when he said Lord Hillsborough would be against  25 that because of his estates in Ireland.  A  26 court of law is not concerned with motivation.  27 A court of law is here to determine the meaning  28 of the words that have been used."  29  30 And the distinction that Dr. Greenwood makes, and he  31 doesn't talk about the Earl of Hillsborough's estates  32 or his motivation, he talks about what the documents  33 reveal in terms of the factual existence of the  34 intention of the framers of the Proclamation.  35 As I said earlier, this case has proceeded on the  36 assumption that in the construction of the Royal  37 Proclamation some extrinsic aids are necessary as well  38 as the factual matrix.  That was the basis upon which  39 Mr. Morrison's evidence was tendered.  And I refer to  40 my friend's brief at tab 2, page 16245, line 4, Miss  41 Mandell says:  42 "It's evidence that is crucial to your  43 lordship,"  44  45 And then states her question:  46  47 "Are there any historical facts which indicate 20397  Submissions by Mr. Goldie  1 the category of Indians with whom the Crown was  2 connected in and around the time of the  3 Proclamation's passage?"  4  5 Now, those words "with whom the Crown was connected"  6 is a direct reference to similar words in the Royal  7 Proclamation.  What she was asking the witness to do  8 was to interpret those words as a means of assisting  9 your lordship.  10 Now, there will be -- my submission at the end of  11 the day will be that the Royal Proclamation can be  12 construed with very little reference to historical  13 documents other than the matrix of facts, the  14 circumstances surrounding it.  But Mr. Morrison and  15 Dr. Greenwood have both looked at everything which is  16 referable to extrinsic aids.  Mr. Morrison was asked  17 to go beyond what he should have gone in that  18 question, but nevertheless that was the intention of  19 the question.  20 Now, my friend, as I have said, in his objections  21 confuses it summarizing and in interpreting.  And I  22 refer under his tab 6 to item four.  He quotes:  23  24 "Insofar as they relate to the interpretation  25 of the Royal Proclamation, the North American  26 provisions may be summarized as follows."  27  28 Now, what he is summarizing are the provisions of the  29 Treaty of Paris.  And that's all he does.  He simply  30 states following the sentence that is objected to:  31  32 "Britain restored Guadeloupe, Martinique and  33 two smaller Caribbean islands to France and  34 granted the latter restricted fishing rights on  35 the coast of Newfoundland and the Gulf of St.  36 Lawrence.  France was ceded the islands of St.  37 Pierre and Micquelon to serve as as shelter for  38 fishermen.  Spain retrieved all the territory  39 Britain had 'conquered in the island of Cuba,  40 with the fortress of Havannah.'"  41  42 And then he goes on.  And all of that is a plain,  43 ordinary summary of a lengthy document and there are  44 other examples of that.  45 Now, my friend suggested the report is legal  46 argument.  In my submission, and I have endeavored to  47 apply to the report, which, as I have said, is really 2039?  Submissions by Mr. Goldie  1 the report of July 1986, the distinction that your  2 lordship makes in your ruling of August 14 between  3 textual and contextual, and I'll come to that in a  4 minute, but I say that it is perfectly appropriate for  5 Dr. Greenwood to take a legal interpretation by  6 somebody else, as he did with respect to Mr. Justice  7 Norris, and test that legal proposition by reference  8 to the historical facts.  My friend has submitted that  9 this report, sight unseen by your lordship, must be  10 rejected because it can't be edited.  11 Mr. Justice Spencer in the Bow Valley case had the  12 report, examined it and concluded after examining it  13 and hearing submissions that it could not be edited,  14 but your lordship is asked to take that step without  15 looking at it.  I'm advised, but I haven't seen the  16 reasons, that Mr. Justice Spencer in a case that was  17 before the courts either I think last week, maybe the  18 week before, Canada Trust and Singh, has issued  19 further reasons with respect to it, the experts'  20 reports which contain mixed fact and argument, or  21 mixed opinion and argument in which he says the proper  22 course is to edit, and this implies, of course, that  23 he deals with the objectionable points one by one.  24 Now, in Dr. Greenwood's report there are some  25 places that arguably are textual as opposed to  26 contextual.  At page 70, for instance, and this is one  27 of the ones that my friend objects to, Dr. Greenwood  28 attempts to distinguish between the words "reserved"  29 and "reserve" in the Proclamation.  That's a  30 self-contained section and can be ignored by your  31 lordship as you intended to do with a number of other  32 reports.  There are other examples which I am quite  33 prepared to deal with in a very short basis, but they  34 do not affect the bulk of the report nor is there a --  35 is there any colouration of his examination of  36 historical documents by any textual comment he may  37 make.  In my submission, and I have not attempted to  38 deal with my friend's questions objectively --  39 completely or exhaustively, the appropriate course is  40 to continue, as has been done, with experts who tender  41 reports as opposed to those who have not done so, let  42 Dr. Greenwood testify and we will deal with objections  43 in the light of the rulings that your lordship has  44 made in your judgment with respect to such reports.  I  45 remind your lordship that so far as legal argument is  46 concerned some of the plaintiffs' experts even  47 referred to paragraphs of the statement of claim and 20399  Reply by Mr. Rush  1 said that their views supported those contentions.  2 As I say, I am prepared to deal summarily, that is  3 to say I am prepared to deal with sections of the  4 report, some of which my friend has identified which  5 can be properly dealt with in light of your lordship's  6 rulings, but your lordship's ruling does not support  7 my friend's argument that this report should be  8 excluded in its entirety.  9 THE COURT:  Mr. Rush.  10 MR. RUSH:  I will deal with Mr. Goldie's submission, my lord.  11 The first point is that should the report not be  12 admitted you will be deprived of the report.  I think  13 it's fairly evident that what you will be deprived of  14 is inadmissible opinions if you agree with the  15 submissions of their making.  So there is nothing to  16 that argument.  We are not saying that Dr. Greenwood  17 should not, as Mr. Morrison has done, refer to the  18 manuscripts and the original source of which he has  19 done so much research.  That surely is the appropriate  20 way to proceed.  21 Second point, my lord, is that my friend raises  22 the argument that if you exclude the report it will be  23 the first time you have done so.  Well, in my  24 submission that's not quite accurate.  Firstly,  25 portions of Ms. Haussler's opinion were excluded and  26 the black pen came out and crossed out several  27 passages referenced on her maps.  Secondly, certain of  28 Mike Morrell's opinions were also excluded, that is to  29 say his maps.  30 MR. GOLDIE:  Portions.  31 MR. RUSH:  Portions thereof.  That is so.  Thirdly, my lord,  32 that it's inescapable the fact that Mike Morrell's  33 report and his appendices were directed by your  34 lordship not to be tendered as evidence.  35 Now, perhaps in respect of Mr. Morrell's evidence  36 that was unique and perhaps, my lord, you are facing  37 another unique situation in these circumstances, but  38 the reality is that your lordship's rulings with  39 regard to the admissibility of historical evidence  4 0 dealing with ancient documents were made during the  41 course of Mr. Morrison's evidence in April of 1989,  42 subsequently amplified, and I say in substantial  43 conformity, to your lordship's rulings in April 26 and  44 27 of 1989.  You amplified those in July 14 of 1989.  45 But the fact of the matter is, my lord, that those  46 rulings were made at that time and following that  47 plaintiffs' counsel, the witnesses that were tendered 20400  Reply by Mr. Rush  1 by the plaintiffs leading historical evidence had to  2 be bound by your lordship's rulings and I submit they  3 were.  This report, my lord, is the first report in my  4 submission that was revised after your lordship's  5 rulings and does not comply with your lordship's  6 rulings and is in my submission --  7 MR. GOLDIE:  My lord, that is not reply and it is contrary to  8 the evidence of Dr. Greenwood.  9 MR. RUSH:  Well, I would submit —  10 THE COURT:  It's not reply, Mr. Rush.  11 MR. RUSH:  Very well.  My friend argues that Mr. Morrison's  12 evidence was given without the benefit of a report.  13 There was also a cross-examination, my lord.  The  14 point I make here is that in the course of Mr.  15 Morrison's evidence your lordship had to deal with the  16 question of the admissibility and the parties joined  17 on that and that's where the rulings flowed and from  18 that point guidance was given.  We all had to be  19 guided by the direction of the court.  My friend says  20 that there was no way of knowing the context of the  21 documents led by Mr. Morrison.  Well, with the  22 greatest respect, my lord, my friend was arguing as  23 though the issue of the applicability of the Royal  24 Proclamation was a new one that the defendant had to  25 face for the first time when Mr. Morrison came on the  26 witness stand.  This is not a new issue.  The genesis  27 clearly was in R. v. Adolf and the fact of the matter  28 is that that summary report was filed and it was  29 evident what the documents, disclosed documents of  30 Dr. -- Mr. Morrison would be and the issues to which  31 they would be addressed.  So one cannot say that there  32 was no context and one had to amplify these.  The fact  33 is that was known before Mr. Morrison gave his  34 evidence and the context is the context of the  35 document.  36 MR. GOLDIE:  Excuse me.  37 MR. RUSH:  Not the context as a whole.  38 MR. GOLDIE:  I take -- I assume my friend is not suggesting that  39 Mr. Morrison's documents were wholly disclosed in his  4 0 summary?  41 MR. RUSH:  I am not suggesting that.  42 MR. GOLDIE:  Thank you.  43 MR. RUSH:  And -- but I doubt very much if there was any  44 surprise on my friend's part in respect of the  45 documents that Mr. Morrison led.  There only is a  46 select grouping of documents, my lord, and it's a  47 question of how those documents would be interpreted. 20401  Reply by Mr. Rush  1 That's a function for your lordship.  2 Now, my friend says, my lord, that Mr. Morrison  3 gave comments, presumably this is an attempt to reply  4 to the evaluation that I have attempted to give to  5 your lordship about Dr. Greenwood's evidence.  What  6 does he provide?  Two examples.  One of the examples,  7 De Font's account as it appears on several eighteenth  8 century maps, my lord, as it appears on the maps  9 secondly, Thomas Fitch, what -- who was then Governor  10 of Virginia.  The evidence goes on to describe --  11 describe the content of the document that is referred  12 to in that evidence.  Again, with the greatest  13 respect, in my submission these are not opinions,  14 those examples are not opinions of the kind that are  15 disclosed throughout the examples that I have referred  16 your lordship to.  17 Now, my friend refers to the Galois documents.  I  18 simply say in answer that if my friend went to the  19 documents he would see the linkage between the  20 conclusion that was drawn and the documents that Dr.  21 Galois referred to, in addition to the eight volumes  22 of documents underlying the opinions and several  23 documents that spoke directly to the question of what  24 Captain Fitzstubbs did at that time and how that led  25 to the creation of the Babine Agency and the need for  26 the presence of the Indian Affairs Department in that  27 agency.  2 8 Now, my friend makes the argument that  29 intention -- that Dr. Greenwood addresses in his  30 report intention as a matter of fact.  My lord, you  31 don't need Dr. Greenwood for that.  It's not Dr.  32 Greenwood's view of intention.  It's the documents'  33 view of intention.  Dr. Greenwood as a mediary for  34 that type of factual information is wholly  35 unnecessary, except to direct your lordship's specific  36 attention to what he thinks is important.  That, I  37 submit, is all that is pertinent.  Wherever Dr.  38 Greenwood has referred, as he has done time and time  39 again, about his view of the intention, my lord, you  40 don't need any of that.  What you need solely is the  41 document and the passage which it will be argued and  42 it will be suggested is a statement of fact about the  43 intention of the framer.  And I say, my lord, there is  44 no misconception here.  You can't play with words.  45 It's a slate of hand to play with words to somehow say  46 that the mediating mind of a historian is going to  47 assist you with regard to determining intention, 20402  Reply by Mr. Rush  1 because in my submission what that mind is doing here  2 is giving you its intention.  And again, if you refer  3 to the summary of the objectionable passages you will  4 see time and again how he does that.  5 My friend makes the argument that both Mr.  6 Morrison and Dr. Greenwood were asked to look at  7 extrinsic aids.  Yes, that's true.  Documents -- in  8 the documents, the documentary record disclose the  9 extrinsic aids.  But, my lord, what the pitch of our  10 argument, the trust of our argument, as I've tried to  11 demonstrate by the examples, is that Dr. Greenwood  12 goes far and beyond that to interweave, interpose his  13 own views and Mr. Morrison did not.  My friend argues  14 that it is perfectly appropriate for Dr. Greenwood to  15 take a legal interpretation and test that proposition  16 by reference to historical facts.  Well, with respect,  17 my lord, I think that that view, Mr. Goldie's view of  18 the permissible bounds of Dr. Greenwood's opinion  19 states succinctly what the opinion does.  It says it's  20 okay for Dr. Greenwood to test, to evaluate, to  21 somehow assess those views, in this case the views of  22 Mr. Justice Norris, against the historical facts.  My  23 lord, the testing is not for Dr. Greenwood.  The  24 testing is for the court.  What Dr. Greenwood will do  25 is to bring those facts to your lordship and you will  26 be the testor of those facts.  You will be the one to  27 determine whether those facts brought by Dr. Greenwood  28 support Mr. Justice Norris or whether they don't.  My  29 friend will urge you one way and perhaps I will urge  30 you another.  But the fact of the matter is testing is  31 not the function of a historian.  32 Now, my lord, my friend makes the point that  33 you've not seen the report and I've endeavored,  34 perhaps naively, to obviate that necessity by finding  35 what I thought were the offensive passages and to  36 demonstrate how in our submission those offensive  37 passages permeate the entire report.  If your lordship  38 feels that that's not good enough, then I take the  39 position look at report.  The report in my submission  4 0 will amply support the arguments that we are making  41 here about the offensive character of the opinions and  42 conclusions expressed there.  I tried to avoid that.  43 Of course I don't want your lordship to be faced with  44 the opinions that we are going to be faced again at  45 the time of argument.  But in my submission, my lord,  46 these -- this is of such a critical nature that your  47 lordship, if you feel that it's not sufficient of what 20403  Ruling  1 I have done here, then I invite your lordship to look  2 at the report, because it raises serious questions for  3 the plaintiffs in terms of the need to reply to that  4 report, in the event that the report in that form is  5 tendered as evidence of those opinions and those  6 conclusions and we say those arguments on the law.  7 I say, my lord, that the distinction between  8 textual and contextual, I am not sure what my friend  9 here is arguing.  What your lordship has ruled is the  10 context of a particular document is the permissible  11 subject area of opinion giving.  The text, my lord,  12 surely must be the document and the description, the  13 outline, the description of the document and its  14 antecedents and its formal characteristics.  Now,  15 those I say, my lord, are permissible subjects of  16 examination.  My friend has volumes of documents that  17 he intends to lead.  That, my lord, is in my  18 submission appropriate to put the sources, the  19 underlying facts before you.  And in my submission  20 that can be done without the aid of this report.  21 THE COURT:  Thank you, Mr. Rush.  I find this a particularly  22 difficult question because it deals not with  23 scientific matters beyond the common understanding of  24 lawyers and judges but rather with history, which is  25 either a collection of understandable facts or  26 inferences or conclusions to be drawn from those  27 facts.  In addition this report on its face contains a  28 great deal of material which is clearly argumentative.  29 I confess to suspecting it would be extremely useful  30 and I also suspect interesting to have the report in  31 evidence, but I am comforted by the fact that counsel  32 may achieve that purpose during argument.  I am  33 persuaded that the argumentative passages to which Mr.  34 Rush has referred me are so numerous that consistency  35 and the authorities require me to reject the report as  36 evidence.  This is not to say that Dr. Greenwood  37 cannot give evidence of historical facts and documents  38 in their context as was done by Mr. Morrison.  This  39 information may then be used, if thought desirable, to  40 support arguments counsel may wish to advance at the  41 end of the case.  But I conclude, as I have already  42 stated, that I accept Mr. Rush's submissions in this  43 point and I cannot permit the report to be marked as  44 an exhibit, or to be placed in evidence.  45 Mr. Goldie, I notice it's 12 o'clock.  Would you  4 6 wish to adjourn for the noon hour adjournment now and  47 reconsider how to proceed or are you ready to go 20404  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 ahead?  2 MR. GOLDIE:  I prefer to go ahead, my lord.  3 THE COURT:  All right.  Thank you.  4 MR. GOLDIE:  Dr. Greenwood.  5  6 FRANK MURRAY GREENWOOD, resumed:  7  8 THE REGISTRAR:  May I remind you, sir, you are still under oath.  9 Would you state your name for the record, please?  10 A   Frank Murray Greenwood.  11 THE REGISTRAR:  Thank you, sir.  12 MR. GOLDIE:  My lord, I propose that the witness have before him  13 his report.  I propose referring to particular  14 documents and I am going to be asking him to identify  15 them and their significance, but the document assembly  16 is arranged on the basis of the footnotes to the  17 report.  There are almost three hundred footnotes.  18 The selection has been made on the basis of those  19 which the witness considers to be significant and I am  20 going to -- I ask your lordship to allow him to have  21 his report in front of him so that he can identify the  22 documents to which I am going to refer him and so that  23 he is able to deal with a great many documents in a  24 way that is hopefully coherent and the first volume of  25 documents that I wish to hand up.  26 MR. RUSH:  Well, my lord, I — my — I object to that and I do  27 so for this reason, that my friends have presumably  28 organized, keeping in mind what the chronological  2 9 development of the evidence and the documents is that  30 they wish to put before the court.  Surely the  31 indexing and the tabulation of the volumes that you  32 will see is by its organization the very kind of  33 assistance that the witness needs in terms of his  34 evidence.  He surely doesn't need his report for the  35 purposes of his evidence.  In my submission the  36 organization brought to the documents as they will  37 come to you in their volume, construction is all that  38 the witness needs.  39 THE COURT:  Well, I don't think that I can make that  40 determination, Mr. Rush.  Surely this is no more than  41 the witness having an outline of what his evidence is  42 going to be or an index of the order and the sequence  43 of the documents.  We used to have a rule that  44 witnesses couldn't refer to notes until they had  45 exhausted their recollection, but that was when we  46 were dealing with simple every day matters of  47 occurrence that one could be expected to remember. 20405  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 But I don't think anybody should be expected to  2 remember this sort of thing, nor do I think I should  3 presume to dictate the kind of index from which the  4 witness wishes to or counsel wishes the witness to  5 operate from and I would -- I would not object to him  6 having the report.  I will hear from counsel if he  7 strays into the text of the report in an objectionable  8 way.  And for that reason I think the matter may  9 proceed as has been suggested.  10 MR. GOLDIE:  My lord, I am handing up to the court Volume 1,  11 documents -- it's entitled "Documents re Dr.  12 Greenwood's Report, Footnotes 3 to 104A."  Of course  13 the report itself will not be marked.  14 THE COURT:  Footnotes 3 to —  15 MR. GOLDIE:  Footnotes 3 to 104A.  16 THE COURT:  Thank you.  17 MR. RUSH:  Do I have a copy?  18 MR. GOLDIE:  Sorry.  19 MR. RUSH:  Thank you.  20 MR. GOLDIE:  21 Q   Now, Dr. Greenwood, in the front of the volume of  22 documents is an index which gives a date and a  23 description and a source.  The A.G.B.C. number is  24 simply from the Province's list of documents.  The  25 report page which your lordship can ignore and the  26 footnote number and tab which also your lordship can  27 ignore, but is -- will be of assistance to the witness  28 in describing to your lordship the significance of the  2 9 document.  30 THE COURT:  These tab numbers refer to the book that I have just  31 been given, not to the report?  32 MR. GOLDIE:  Yes.  The tab numbers, and I will be asking the  33 exhibit numbers to the tab numbers, so that the  34 exhibit will be whatever exhibit number is applied to  35 the volume and then dash, and perhaps we can use a  36 volume number, dash one or separate exhibit number for  37 each volume.  But instead of numerical sequence in  38 order, it will be 8, 12-A or 3.  39 THE COURT:  How have you organized the balance of -- you have a  4 0 number of volumes?  41 MR. GOLDIE:  We have six volumes and it contains -- it's  42 organized in exactly the same way.  43 THE COURT:  But are the tabs consecutive by volume?  44 MR. GOLDIE:  The tabs are by footnote and therefore —  45 THE COURT:  The Volume 2, we'd be at tab one again?  46 MR. GOLDIE:  No, no.  Volume 2 will —  47 THE COURT:  Start with 104B? 20406  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 MR. GOLDIE:  104 will be 105.  2 THE COURT:  105.  3 MR. GOLDIE:  All right.  4 THE COURT:  All right.  Well, then I think that this volume  5 should be -- should have reserved for it the next  6 exhibit number which will be --  7 THE REGISTRAR:  1159.  8 THE COURT:  1159.  And the documents, if the matter proceeds,  9 and they are held to be admissible, the documents in  10 this volume will be 1159 dash followed by their tab  11 number.  12 MR. GOLDIE:  If a document is inadmissible we can simply pull  13 the tab out and that's the end of it.  14 THE COURT:  Yes.  All right.  15  16 (EXHIBIT 1159 RESERVED:  Documents Re Dr. Greenwood's  17 Report, Volume 1, Footnotes 3 - 104A)  18  19 MR. GOLDIE:  20 Q   Dr. Greenwood, under tab 3 you have the Treaty of  21 Paris.  Is there anything you wish to direct his  22 lordship's attention with respect to the Treaty of  23 Paris?  24 A   If your lordship would turn to internal page 84, which  25 begins "the English translation of the Treaty of  26 Paris," which was dated 10th of February.  27 THE COURT:  I am sorry, that's the treaty itself, is it,  28 starting at page 84?  29 A   It's a copy of the English translation of the treaty.  30 THE COURT:  What are the first few pages?  31 MR. GOLDIE:  32 Q   The French.  33 A   The French.  34 THE COURT:  French, all right.  You think we need them both, do  35 we?  All right.  36 A   The treaty was dated February 10, 1763.  37 THE COURT:  Just a moment.  Yes.  38 A  And it was concluded between or amongst George III of  39 England, Louis XV of France and King Don Carlos of  40 Spain.  41 THE COURT:  I am sorry, that's George III, Louis the —  42 A   XV.  4 3 THE COURT:  XV?  44 A   Often referred to as His Most Christian Majesty in the  45 document, and Don Carlos, King of Spain.  And I direct  46 your lordship's attention --  47 THE COURT:  What about the King of Portugal, that's not the King 20407  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  of Spain?  Ceded the same day, yes.  1  2  A  3  MR.  GOLDIE  4  Q  5  6  7  A  8  9  1  10  1  11  THE  COURT:  12  A  13  THE  COURT:  14  A  15  THE  COURT:  16  MR.  GOLDIE  17  18  THE  COURT:  19  MR.  GOLDIE  20  A  21  22  23  24  25  26  27  28  29  30  31  32  Q  33  THE  COURT:  34  A  35  36  37  38  39  40  41  MR.  GOLDIE  42  Q  43  A  44  Q  45  A  46  Q  47  i  And in terms of the relevance to the Royal  Proclamation, are there any sections to which you wish  to direct his lordship's attention?  I think Section IV might be looked at which is an  internal page 85 at the bottom, line five.  His Most  Christian Majesty ceded, quote, "Canada, with all its  dependencies," unquote.  Now, where is that now?  That's article IV internal page 85.  Yes.  Line five, "Canada, with all its dependencies."  I haven't found that language yet.  :    It's the fifth line down in article IV which is  at the bottom of the page, my lord.  Yes, I see it, thank you.  And no boundaries are given for Canada in that article  or in the treaty.  Article VII internal page 86  beginning at line three:  "The confines between the dominions of his  Brittanick Majesty and those of His Most  Christian Majesty, in that part of the world,  shall be fixed irrevocably by a line drawn  along the middle of the River Mississippi from  its source to the River Iberville."  Unquote.  Thank you.  Iberville down on the Gulf of Mexico?  Yes.  So that was to be the international frontier, as  it appears in the treaty it's an international  frontier between France and England.  However, prior  to the treaty France had ceded Western Louisianna to  Spain so that on its face it's an agreement between  France and England; in reality Spain only the  territory west of the Mississippi.  Was that known?  No.  By I should say --  By the British at that time, no.  Thank you.  Do your documents deal later, Dr.  Greenwood, with the interval between the cessation of 2040?  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  4  A  5  Q  6  7  8  9  10  11  12  13  14  15  16  17  THE  COURT:  18  A  19  MR.  GOLDIE  20  THE  COURT:  21  MR.  GOLDIE  22  THE  COURT:  23  MR.  GOLDIE  24  THE  COURT:  25  MR.  GOLDIE  26  THE  COURT:  27  MR.  GOLDIE  28  Q  29  30  A  31  Q  32  A  33  34  Q  35  36  37  38  39  40  41  MR.  RUSH:  42  43  THE  COURT:  44  MR.  GOLDIE  45  Q  46  47  A  hostilities in North America and the Treaty of Paris  with particular reference to the first or unsuccessful  peace negotiation?  Yes, they do.  We will come to that.  One other consideration.  Turning to the page 81, my lord, I direct the witness'  attention to about midway down the page the words, and  I quote:  "For this purpose, the high contracting parties  have named and appointed their respective  Ambassadors."  Do you see that document?  Page 81?  No, I don't.  :  Page 81 -- I am sorry, 84, my lord.  Oh.  And how far down the page?  :   About halfway down the page there is a sentence --  "For this purpose"?  :   Pardon, my lord?  "For this purpose"?  :   "For this purpose"?  Yes.  :  Yes.  The British Plenipotentiary, viz, is the Duke of  Bedford?  That's correct.  And he was what?  He was the Ambassador commissioned to negotiate the  peace preliminaries in Paris.  Thank you.  I want next to direct your attention to  tab 8.  Before I do, my lord, unless I hear an  objection I will not go through the process of asking  each of these documents to be marked as an exhibit.  I  would ask that in order to move along with the matter  that it be treated as being tendered and being marked  in accordance with the numbering that we've discussed.  My lord, I will make my objection if I have any and I  am content to go with that procedure.  All right.  Thank you.  I refer to tab 8, and would you tell his lordship what  this is, please?  These were royal instructions from the King of Great 20409  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 Britain to the newly appointed governor of the newly  2 created Colony of Quebec, James Murray.  They are  3 dated 7 December 1763.  4 Q   Now, you say the newly appointed Colony of Quebec?  5 A   Newly created colony.  6 Q   Newly created, I am sorry.  Would you state briefly to  7 his lordship the events that occurred between the  8 Treaty of Paris at tab 3 and the instructions to  9 Governor Murray at tab 8?  10 A   In terms of the creation of --  11 Q   The events that occurred, just identify them.  12 A  Well, yes.  13 MR. RUSH:  Excuse me, just before he does that, perhaps your  14 lordship should be aware of the month and date of the  15 Treaty of Paris.  I wasn't clear if that was --  16 A   10th of February.  17 THE COURT:  It was February, yes.  I was given that a minute  18 ago.  19 MR. RUSH:  And these events are December 7, 1763?  2 0 THE COURT:  Yes.  21 MR. GOLDIE:  22 Q   Yes.  I am just asking the witness to identify the  23 events.  24 A  Well, the government took into consideration the new  25 acquisitions, what policies would be appropriate to  26 better exploit them commercially; how to organize  27 their governments and constituents; whether to create  28 new colonies, and how to deal with Indian policy and  29 Indian unrest on the frontier.  So there were a series  30 of policy documents going back and forth between the  31 secretary of state and the king on the one hand and  32 the cabinet and on the other hand usually the Board of  33 Trade or advisors of the Board of Trade, the clerk  34 particularly, John Pownall.  Now --  35 Q   That's P-o-w-n-a-1-1?  36 A   N-a-1-1.  The policy process was going on in early  37 August 1763 when news arrived at Pontiac's Rebellion  38 in the Ohio country in the Great Lakes country and at  39 that point the Board of Trade recommended that a  40 proclamation be issued dealing with Indian policy  41 rather than to proceed by way of instructions to the  42 individual governors.  That recommendation was  43 accepted by the Imperial government and the Royal  44 Proclamation, of course, issued on the 7th of October  45 1763.  In it three new colonies --  46 THE COURT:  I am sorry, the Proclamation issued when?  47 A   7th October, 1763. 20410  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 THE COURT:  Thank you.  2 A  And in the Proclamation there is an announcement of  3 the creation of three new colonies, East and West  4 Florida and Floridas had been ceded, you know, by  5 Spain to England in the Treaty of Paris, and Quebec,  6 which included some of the geographical area of the  7 Old French Colony, Canada.  But it was given definite  8 boundaries and was a great deal smaller than Canada  9 had been.  The name change from Canada can be  10 documented to the 19th of September 1763.  At that  11 point an instruction was given to the Board of Trade  12 that the name of the new colony would no longer be  13 Canada, which, of course, was offensive of the name to  14 British Americans and henceforth would be Quebec.  15 MR. GOLDIE:  16 Q   And just to complete your very brief chronological  17 reference, Governor Murray was -- governors were  18 appointed for the new colonies?  19 A   That's correct.  2 0 Q   And Governor Murray was one of them?  21 A   That's correct.  22 Q   Now, you have made reference to the -- to the Royal  23 Proclamation and, my lord, I would like to hand up a  24 copy of the Royal Proclamation which you will find  25 this -- Dr. Greenwood, a copy that I have handed up to  26 his lordship has lettered on the side of it A through  27 AA and you've had those -- you've had those lettered  28 there for ease of reference?  29 A   Yes.  30 MR. GOLDIE:   They certainly are not part of the original  31 Proclamation, my lord, they are just there --  32 THE COURT:  Yes.  All right.  33 MR. GOLDIE:  -- to enable the reader to make a quick reference.  34 And the —  35 MR. RUSH:  Perhaps you should point the witness to the  36 underlining too.  37 MR. GOLDIE:  38 Q   Well, there is some underlining there.  That's either  39 yours or somebody else's, but that too is not part of  40 the original document, is that correct?  41 A   Correct.  42 Q   And this document was taken from the publication in  43 the Canadian Government source, is that correct?  44 A   Revised Statutes of Canada 1970, Appendices.  45 Q   Now, would you just take his lordship through the  46 Royal Proclamation and highlight those parts which  47 will be of relevance or to which you have already 20411  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 referred.  2 A   Yes.  Well, beginning on paragraph D, the boundaries  3 of Quebec are given.  Paragraphs E and F, the  4 boundaries of East and West Florida respectively are  5 given.  6 Q   Now, may I just pause there.  Potitically who was the  7 sovereign power in respect of what is now described in  8 the Royal Proclamation as East Florida?  9 A  At this time?  10 Q   Prior to the Treaty of Paris?  11 A   Oh, well, that was Spanish territory.  12 Q   Yes.  All right.  13 A   It had been ceded in the Treaty of Paris along with  14 West Florida.  15 Q   Yes.  16 A   Or actually it was just Florida in the time of the  17 Spaniards.  Paragraphs K to M inclusive for the new  18 colonies there is a promise of an assembly that is a  19 part of the legislature which would be elected.  This  20 was promised by the king "so soon as the state and  21 circumstances of the said colonies will admit."  22 That's a quotation from paragraph L.  23 Q   Thank you.  24 A  Moving down to N and 0, there is an announcement that  25 the governors had been authorized to constitute  26 courts, these new colonies and these courts would  27 operate or would apply the laws of England as near as  28 may be agreeable, to quote paragraph N.  Paragraph R,  29 these are the system of rewarding soldiers and  30 officers who had fought in the Seven Years' War and  31 were resident in North America.  Paragraph S is a  32 preamble to the following paragraphs or the section I  33 suppose you could say dealing with Indian matters.  34 And S is the preamble.  I don't think it's necessary  35 to read it, is it?  36 Q   No.  37 A   No.  38 Q   We may come to that later on with other documents.  39 A  All right.  Paragraph T prohibits the governors of the  40 new colonies to issue warrants of survey or to grant  41 lands outside their boundaries.  Paragraph U prohibits  42 other governors from passing warrants of survey or  43 making land grants beyond -- quote:  44  45 "Beyond the Heads or Sources of any of the  46 Rivers which fall into the Atlantic Ocean from  47 the West and North West" 20412  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2 Unquote.  That paragraph U goes on and deals also with  3 lands which have not been ceded to or purchased by us.  4 They also -- they cannot -- they cannot have land  5 grants or warrants of survey on those particular  6 unsurrendered lands either.  Paragraph V establishes a  7 huge area in the continent as one in which the Indians  8 will have the special protection of the king.  Now, in  9 common parlance among scholars it's often referred to  10 as the Reserve.  I don't know whether there is any  11 objection to that here.  The capital R, Reserve.  But  12 the protected area is announced in that paragraph and  13 its boundaries or some of its boundaries are  14 indicated.  Paragraph, W there can be no private  15 purchases of settlements on the Reserve without the  16 special licence of the king.  Paragraph X, persons who  17 have settled themselves inadvertently on the Reserve  18 or on other unsurrendered lands must leave forthwith.  19 Paragraph Y, the first part of it at least prohibits  20 private purchases in the settled parts of colonies,  21 private purchases of tribal lands from the Indians.  22 So all purchasing must be done by the Crown or the  23 Crown's representatives and they are to proceed,  24 quote, in the middle of paragraph Y, "at some public  25 meeting or an assembly of the said Indians to be held  26 for that purpose by the Governor or Commander-in-Chief  27 of our Colony respectively within which they shall  28 lie," unquote.  At the bottom of paragraph Y and in  29 paragraph Z, an arrangement for regulating the fur  30 trade is announced.  In particular, fur traders must  31 get licences from the Governors or the  32 Commander-in-Chief of a colony must give security to  33 observe any regulations that the king might issue  34 governing the fur trade.  Paragraph AA enjoins and  35 requires all officers, military or those in the --  36 employed in the management of Indian Affairs to  37 apprehend persons suffering from justice in the  38 colonies and to return them under proper guard to the  39 colony where they are accused of a crime.  40 Q   All right.  Thank you, doctor.  Before proceeding with  41 the parts of the Governor Murray's instructions to  42 which you wish his lordship to note, you made mention  43 of Pontiac's Rebellion.  Now, my lord, in the -- Dr.  44 Greenwood has made reference to that rebellion and as  45 has Mr. Morrison.  It is so far as I am aware not a  46 part which is referred to by -- which is objected to  47 by my friend.  Would there be any objection to him if 20413  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 not reading it providing the court with the sources  2 that he had relied upon, and I make this suggestion,  3 because I do not want to be deprived of the use of the  4 secondary sources which Dr. Greenwood has identified  5 as appropriate for the use of a review of this part of  6 the historical background.  7 THE COURT:  How long is the passage?  8 MR. GOLDIE:  It extends one, two, three -- three and a half  9 passages -- three and a half pages, but also he has a  10 section preceding that on Indian land policy during  11 the Seven Years' War.  Now, Mr. Morrison talked about  12 that at some length.  Mr. -- Dr. Greenwood has  13 provided a number of secondary references and again  14 I'm -- I did not note an objection to that.  I want to  15 conform to your lordship's ruling, but there are parts  16 of Dr. Greenwood's report which have not been objected  17 to.  18 THE COURT:  I am going to adjourn for lunch and counsel can  19 consider that suggestion and I'll be glad to hear from  20 you at 2 o'clock.  21 MR. GOLDIE:  Thank you, my lord.  22  2 3 (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON  2 4 ADJOURNMENT)  25  26 I hereby certify the foregoing to be  27 a true and accurate transcript of the  28 proceedings herein to the best of my  29 skill and ability.  30  31  32  33 Laara Yardley, Official Reporter,  34 United Reporting Service Ltd.  35  36  37  38  39  40  41  42  43  44  45  46  47 20414  Discussion on Scheduling  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.  THE  MR.  THE  MS.  MR.  THE  (PROCEEDINGS RECONVENED AT 2:00 P.M.)  THE REGISTRAR:  Order in court.  THE COURT:  May I raise a brief question of scheduling with  counsel?  Assuming, Mr. Goldie, that you finish your  case on or before the end of the week of the 23rd of  October -- the 23rd is the Monday and I think that's  the -- I think you indicated you might well finish the  week before?  GOLDIE:  I think I said that would depend upon sitting  Saturdays and evenings.  COURT:  Yes.  But assuming that we finish your case on  the -- at least on the 27th of October.  GOLDIE:  Yes.  COURT:  I have to ask Miss Russell and Mr. Frey whether they  will be expecting to embark upon their defence on the  30th?  RUSSELL:  My lord, those are not our instructions.  It's my  understanding that we would be prepared to commence  on -- in the week of November 6th, to commence  probably on November the 8th.  GOLDIE:  Yes.  COURT:  Yes, all right.  I knew there was some reason why I  am in some trouble downstairs.  And that's -- that's  your understanding too, is it, Mr. Rush?  MR. RUSH:  I understood Mr. Macaulay's submissions of, I think,  two days ago, that he sought to start his case on the  8th, which is a Monday.  Yes.  All right.  Yes, that's my understanding.  RUSSELL:  That's a Wednesday, my lord.  COURT:  Yes.  RUSSELL:  My lord, I should just explain that that's because  of the Pascal (phonetics) appeal in the Supreme Court  of Canada.  I recall now.  There is a sitting of five judges in  the appeal court that I am needed on on the 30th, so  that will fit nicely.  Thank you.  Mr. Grant.  My lord, the only other matter is the suggestion  that possibly we will be sitting in court on the week  of the 23rd, which was scheduled as the off-week, and  you may recall we had scheduled out-of-court cross-  examinations .  THE COURT:  Yes.  MR. GRANT:  In that week.  THE COURT:  Yes.  Well, the only reason we would sit in the week  of which -- in the week of the 23rd would be to finish  COURT:  RUSH:  THE  MR.  MS.  THE  MS.  THE COURT  MR. GRANT 20415  F.M. Greenwood (for Province)  Submission by Mr. Goldie  1 Mr. Goldie's case.  2 MR. GOLDIE:  Well —  3 MR. GRANT:  I am saying there may be -- what I'm concerned about  4 is the last witness he has scheduled --  5 THE COURT:  Yes.  6 MR. GRANT:  -- and counsel involved with that witness may well  7 be the same counsel as involved with the out-of-court.  8 Right now we are operating on the basis that the  9 Tuesday, I think the 24th and 25th, we are going to be  10 dealing with the --  11 THE COURT:  Let's hope you will be able to, but I think  12 completing the case in court is going to have to take  13 priority.  If I can -- I can tell counsel I hope to  14 have a memo for them later today about scheduling of  15 argument, which will probably please no one.  Thank  16 you.  17 MR. GOLDIE:  My lord, I should have tendered the Royal  18 Proclamation, the copy that Mr. -- Dr. Greenwood is  19 utilizing as an exhibit.  20 THE COURT:  All right.  Next number, then, is?  21 THE REGISTRAR:  1160.  22 THE COURT:  Thank you.  23 (EXHIBIT 1160:  ROYAL PROCLAMATION DD. OCTOBER 7,  24 1763)  25 MR. GOLDIE:  My lord, at the luncheon adjournment I was  26 proposing that some means be found of dealing with  27 sections of Dr. Greenwood's report which were  28 essentially not those which have been objected to, and  29 I was going to suggest, my lord, that pages 5 to 12 of  30 his report -- which deals with Indian land policy  31 during the Seven Years War and Pontiac's Rebellion --  32 be marked as an exhibit, and that would ensure that  33 the secondary authorities -- I wouldn't need to take  34 Dr. Greenwood through that.  35 Now, I should tell your lordship that my friend  36 has taken, as to those pages, no objection except --  37 and I will now indicate the exceptions.  If your  38 lordship would have before you my friend, Mr. Rush's  39 brief, the blue book, at page 30, under tab 6.  And I  40 wonder -- I'm going to ask your lordship to have  41 before you the pages in question from his report.  42 THE COURT:  Thank you.  43 MR. GOLDIE:  And page 5 -- and these objections are all  44 statements on the broad scope of history.  And page 5,  45 the sentence -- first sentence under paragraph I.B.:  46  47 Before, during and immediately after the war, 20416  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)  Submission by Mr.  Submission by Mr.  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  Goldie  Rush  British - Indian relations were bedeviled by  European encroachments on lands occupied by  native tribes as their hunting grounds.  And footnote four provides the secondary sources.  Now, that sentence really is no more than an  introduction to the specific evidence which is of  almost precisely the character that Mr. Morrison gave.  Page 7, the sentence which introduces the first  complete paragraph, starting with the words:  During the early years of the war Britain  absorbed some hard lessons from its failure to  afford the Indians adequate protection for  their tribal lands and in an ad hoc manner  began moving towards the comprehensive policies  found in the Royal Proclamation.  I have no objection to that coming out, my lord.  And then on page 9, my friend objects to the  words in the second-to-last sentence in the first  complete paragraph, which begins with the words, and I  quote:  By 1762, then, the main lines of the Imperial  government's approach to Indian lands had been  worked out...  It seems to me, my lord, that that is an  unobjectionable summary of the evidence which -- or  the evidence to which Dr. Greenwood has referred  previously.  But if my friend seriously objects to  that, I have no objection to taking it out.  And then on page 11 --  :  Well, I should hear what Mr. Rush has to say.  My lord, I, with respect, say this is not the way to  proceed.  My friend is reading my brief as the basis  that these were the only objections that I raised.  These were the most obvious objections that I raised  and the submission was based on what, in my view, was  the very poignant examples, if I may put it that way.  I don't think that my friend should assume that simply  because I just focused on these, that somehow I don't  take objection to other passages.  That's not the  case.  In respect of how my friend --  :  This is what Mr. Morrison told me, isn't it?  Some of this is what Mr. Morrison told you.  That -- 20417  F.M. Greenwood (for Province)  Submission by Mr. Rush  Submission by Mr. Goldie  1 THE COURT:  That passage is.  2 MR. RUSH:  That passage is, yes, that's right.  But what my  3 friend proposed was one of two suggestions to deal  4 with his evidence, here at the break for lunch.  One  5 was either to have the witness read through certain  6 passages of this report, which I do take issue with.  7 The other was in respect of his evidence to refer  8 to -- to have him refer the witness to certain  9 secondary sources that I don't take objection with.  10 And if my friend wants to refer him or lead him to the  11 secondary source, that's fine by me.  But I think it  12 runs counter to your lordship's ruling here, to read  13 in certain passages of the report based upon the fact  14 that I only highlighted certain of the ones as I did  15 in my brief.  That certainly was not the point of my  16 brief.  17 THE COURT:  Well, I am not sure what I -- that I understand what  18 is meant by "secondary source".  What are the primary  19 sources?  20 MR. GOLDIE:  The primary sources are original documents.  But  21 the secondary sources -- and for instance, footnote 5,  22 the sources principally relied on here are Howard  23 Peckham, Pontiac and the Indian Uprising; Sosin,  24 Whitehall and the Wilderness.  For example, Sosin was  25 referred to by Mr. Morrison.  2 6 THE COURT:  I haven't even found footnote 5.  27 MR. GOLDIE:  Oh.  It's page ten.  I am sorry, my lord.  28 THE COURT:  Secondary source in this sense, then, are what we've  29 been calling learned treatises?  30 MR. GOLDIE:  Yes.  31 MR. RUSH:  Yes.  32 THE COURT:  All right.  33 MR. GOLDIE:  But my friend said I put forward two proposals.  I  34 agree with that.  But the first one was consistent  35 with what was done with Morrell.  Your lordship said  36 this: "I am not taking this report in its present  37 form."  So then what was done was to take the sections  38 which appeared innocuous and they were marked.  And in  39 my submission -- my friend may have additional  40 objections and I am quite prepared to see if I can  41 accommodate him.  All I am doing was taking the  42 sections that he found objectionable and brought to  43 your lordship's attention, and saying some of these  44 are -- can't be objectionable.  They are exactly the  45 sort of thing that Mr. Morrison did, although I don't  46 admit for a minute that Dr. Greenwood is now to be --  47 that he is bound by the limitations that Mr. Morrison 20418  F.M. Greenwood (for Province)  Submission by Mr. Goldie  1  2  3  4  5  6  7  8  9  MR.  RUSH:  10  11  MR.  GOLDIE  12  MR.  RUSH:  13  14  ]  15  16  17  18  19  20  MR.  GOLDIE  21  22  23  24  THE  COURT:  25  26  27  MR.  GOLDIE  28  THE  COURT:  29  30  MR.  GOLDIE  31  32  33  34  35  36  37  THE  COURT:  38  MR.  GOLDIE  39  THE  COURT:  40  MR.  GOLDIE  41  THE  COURT:  42  MR.  RUSH:  43  THE  COURT:  44  MR.  RUSH:  45  MR.  GOLDIE  46  47  has established.  That's -- it's independent of that.  Your lordship's ruling is what I am bound by.  The -- but I just wanted to complete what I had to  say, and that is, that on page 30 of my friend's  brief -- and he's -- these are the objections which  then I take are what he characterized as "poignant".  And at page 11, what he objects to is the words, "in  hindsight"  No, that's not right.  I don't object to the words  "in hindsight".  I begin a sentence.  :  Well —  Because I underlined -- I mean, am I to have to -- my  lord, the point of my argument was not to restrict  myself to language like "in hindsight".  I mean the  point of my argument was to convince your lordship why  the document, per se, is not admissible.  Your  lordship has made a decision on that.  And my friend's  option, in my submission, is to proceed with viva voce  evidence, not to parse the report.  :  Well, I was endeavouring to adhere to my friend's  exhortation to your lordship about consistency, and  this is the manner in which Morrell's report was dealt  with.  And finally, at page --  Well, the problem I have with that, Mr. Goldie, is  that the parts of Mr. Morrell's report that were  admitted were admitted by, I think, by consent.  :  They were admitted without objection, my lord.  Well, that may be.  I am not facing that now.  I am  facing an objection.  :  Well, all I am suggesting is that when your  lordship looks at the objections which are made, and  if my friend has any others, let him make them.  But  this, in my submission, is a way in which a portion of  Dr. Greenwood's evidence can be dealt with  expeditiously.  Now, of course, if we keep on arguing  about it --  Is there a bibliography to Dr. Greenwood's report?  :  No.  It's all in the footnotes, my lord.  Just footnotes?  :  All in the footnotes.  Yes.  There is no bibliography, so footnotes are footnotes.  So footnotes are the bibliography.  Well, not everything in this is footnoted, of course.  :  Well, every primary source is footnoted, and my  friend has copies of every reference in here, unless  the document is in the public domain.  But the 20419  F.M. Greenwood (for Province)  Submission by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  MR.  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  secondary sources which are treatises --  THE COURT:  Well I think we have managed the problem and I would  be -- I would be anxious to hear what counsel have to  say about receiving in evidence a collection of all  the footnotes which would be treated as the  bibliography, containing the secondary sources upon  which the witness relied for the various parts of the  evidence he is going to give.  And that would make it  clear what he has relied upon and counsel would be  free to look into those matters as learned treatises  have been used with respect to the other witnesses.  MR. GOLDIE:  That's quite satisfactory to me.  Only comment I  make is that it is not quite as expeditious as taking  innocuous sections and filing them.  But if my friends  take an objection to that, then I would be quite happy  to file a collection of the footnotes.  I think that that's perhaps what we ought to do.  Yes.  My lord, a collection of the secondary sources  in the footnotes.  All right.  The footnotes --  I haven't got that distinction.  Yes.  Well, many of the footnotes themselves are  objectionable for the reasons I've argued earlier.  Not all the footnotes are free of opinions offered by  the witness.  Many of the footnotes contain sources to  those.  I have no difficulty.  GOLDIE:  Well, that's what we are talking about.  RUSH:  Well, as long as it's understood that that's what we  are talking about, because there are many footnotes  here that do not contain secondary source.  Well, I would be glad to receive a collection of the  footnotes which describe the secondary sources upon  which Dr. Greenwood has made reference, and presumably  relied upon in support of the evidence that he is  going to give.  And if, as in the case of some of the  other witnesses, counsel want to put before me  photocopies of those secondary sources, or portions of  them, I will be glad to receive them too, as we have  in other cases.  MR. GOLDIE:  I had not understood that was necessary.  THE COURT:  Well, it may not be.  I am not suggesting it is.  MR. GOLDIE:  And of course, the -- I will deal with the question  of -- that my friend raised about objectionable parts  in the footnotes.  For all I know, my lord, there may  be objectionable parts in the secondary source.  They  are filled with argument.  MR.  MR.  THE COURT 20420  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 THE COURT:  Well, we've faced that problem and accepted that  2 one.  3 MR. GOLDIE:  Yes.  4 THE COURT:  At least it's not sworn to.  5 MR. GOLDIE:  6 Q   Now Dr. Greenwood, just using page numbers in your  7 report as a means of orienting yourself with respect  8 to my questions and not -- and ensuring that you  9 are -- that you are not going beyond his lordship's  10 ruling.  My understanding is that at pages 5 to 9 of  11 your -- you had expressed some views and collected  12 some authorities with respect to Indian land policy  13 during the Seven Years War.  And are those secondary  14 sources -- well, I'll just use the word "sources"  15 rather than "secondary".  Are the sources for the  16 views you expressed found in footnote 4?  17 A   Yes.  18 Q   And with respect to Pontiac's Rebellion, are the  19 footnote sources that you relied upon -- or the source  20 upon which you relied, primarily those found in  21 footnote 5?  22 A   Yes.  23 Q   Thank you.  Do you wish to comment on the -- well, no,  24 I'll ask that question later.  25 Now, turning to concept -- the part of your  26 report that -- in which you express opinions about  27 concepts of Imperial expansion?  28 A   Yes.  29 Q   I understand there you have collected sources and  30 comment upon what constitutes expansion and what  31 constitutes mercantilism?  32 A   Yes.  33 Q   What is mercantilism?  34 A  Well, it was the prevailing economic theory in the  35 18th century which contended that the state should  36 regulate the economy, often in quite a detailed way,  37 in order to increase the wealth of the state.  It's  38 obviously distinguishable from laissez-faire, the  39 theory of Adam Smith, who publishes -- or published,  40 however, only in 1776, as the Wealth of Nations.  So  41 that would be a general description of mercantilism.  42 Q   Was there -- what was the relevance of these two  43 theories to the period that we are referring to here,  44 namely, immediately prior to and at the time of the  45 Royal Proclamation?  46 A  Well, the second, laissez-faire, has no relevance  47 because it's unborn at this time and doesn't become an 20421  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 orthodoxy until after the Napoleonic wars.  As far as  2 mercantilism is concerned, one of the principles was  3 that colonial manufacturing in general -- there might  4 be a few exceptions such as potash and a few things  5 like that -- but in general, colonial manufacturing  6 was to be discouraged so as not to compete with the  7 manufacturing of the British Isles.  8 Q   The word expansionism has been used?  9 A   Yes.  10 Q   What would you --  11 A  Well, do you want me to sort of link mercantilism  12 to —  13 Q   Just tell his lordship --  14 A   -- towards expansion?  15 Q   Just tell his lordship what that word means in the  16 same way that you've described mercantilism?  17 A  Well, expansionism is simply a word that I used to get  18 at attitudes.  Dealing with whether settlements should  19 proceed west of the Appalachian range or not.  20 Q   All right.  Perhaps you might link those two things --  21 or discuss those two?  22 A   Yes.  Well, as I said, mercantilism had this principle  23 of colonial manufacturing should be discouraged.  And  24 it was the opinion of many people -- pamphleteers in  25 the early 1760's, officials who worked on the policies  26 that were later found in the Royal Proclamation  27 dealing with Indians -- there was a considerable body  28 of opinion that expansion should not proceed westward,  29 because if it did, the people who went into the  30 western parts of North America would not be able to  31 bring their bulky goods, grain, cattle, timber, et  32 cetera, to the Atlantic for export, and they would not  33 import British manufactured goods, and they would  34 also, themselves, take up manufacturing.  35 Q   Now, the --  36 A   To the detriment of the mother country.  37 Q   I understand that some of the sources for your  38 statements are found in what you refer to as Part 4.E.  39 later on in your opinion.  But am I right in my  40 understanding that the sources for the summary of  41 which you have just given us, are found at least in  42 part in footnote 6?  43 A   In part in footnote 6, yes.  44 Q   Thank you.  Can you tell his lordship whether there  45 was any question arose in Britain at the time with  46 respect to the retention of Canada as a fruit of the  47 war in contrast to retaining Guadeloupe, and if so, 20422  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 what the nature of that was?  2 A  Well, there certainly was a pamphlet controversy --  3 quite an intense controversy among pamphleteers as to  4 whether Guadeloupe should be retained at the peace or  5 Canada be retained.  Now the arguments in relation to  6 retaining Canada often dealt with security.  But  7 insofar as the economic situation is concerned, those  8 who argued for the retention of Guadeloupe -- some of  9 them, at least -- suggested that removing the French  10 danger, right, by taking Canada, would mean that the  11 British Americans would move westward and would start  12 manufacturing on their own.  13 Q   Now, you make reference to instructions given to royal  14 governors and you refer to tab 8?  15 A   Yes.  16 Q   Which is, as you have already identified it, the  17 instructions given to Governor Murray of December the  18 7th, 1763?  19 A   Yes.  20 Q   And what part of that do you direct his lordship's  21 attention to, in relation to this question of --  22 A   Yeah.  23 Q   -- mercantilism?  24 A  Article 63 of the instructions on internal page 145,  25 beginning on line three of that article.  It's tab 8,  2 6 my lord.  27 THE COURT:  Page 145?  28 THE WITNESS:  Internal page 145, article 63, the third line in,  29 and I'll quote that:  30  31 And it is our express will and pleasure --  32  33 THE COURT:  I am sorry?  34 MR. GOLDIE:  It's about half-way down the page, my lord, 63.  35 Beginning with the words, "You are to use your best  36 endeavours"?  37 THE COURT:  Yes.  Yes, I have it.  Thank you.  38 THE WITNESS:  And I am quoting from the third line.  3 9 THE COURT:  Yes.  40 THE WITNESS:  41 And it is Our express Will and Pleasure, that  42 you --  43  44 That is James Murray.  45  46 -- that you do not, upon any Pretence whatever,  47 upon pain of our highest Displeasure, give your 20423  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 Assent to any Law or Laws for setting up any  2 Manufactures and carrying on any Trades, which  3 are hurtful and prejudicial to this Kingdom.  4  5 Now that was a standard instruction given to the  6 royal governors, and I think there were a dozen, by  7 the end of 1763, royal colonies.  8 MR. GOLDIE:  9 Q   Can you -- do you have authority for that -- or source  10 of your information in that respect?  11 A   Yes.  It's Labaree's book on the royal instructions.  12 Q   Can you spell the name of that author, please?  13 A   Yes.  I just have to look up a reference here.  14 Q   All right.  Thank you.  15 A   Yes.  The reference is Leonard Woods Labaree.  16 THE COURT:  L-A-B —  17 THE WITNESS:  — A-R-E-E, Editor, Royal Instructions to British  18 Colonial Governors.  Royal Instructions to British  19 Colonial Governors, this is a book, 1670-1776, two  20 volumes, New York, circa 1935, volume 2, page 654.  21 MR. GOLDIE:  22 Q   But that's —  23 A   Number 910.  24 Q   Yes.  That reference to the publication, as such, is  25 in one of your footnotes?  26 A   No.  That publication of Labaree?  27 Q   Yes?  28 A   Yes.  Not the precise pages, but Labaree himself has  29 been cited at the footnote.  30 Q   Footnote which?  31 A   Footnote 105.  32 Q   Thank you.  33 A   Do you want me to explain the royal colonies?  34 Q   Well, perhaps you should.  35 THE COURT:  The royal?  36 THE WITNESS:  Colonies.  37 THE COURT:  Oh.  38 THE WITNESS:  Well, there were three different kinds of colonies  39 at the time.  40 MR. RUSH:  Well, my lord, what is the basis for this?  The  41 source of this?  42 THE COURT:  The source of this?  4 3 MR. RUSH:  Yes.  44 THE COURT:  Yes.  What is the source of this?  45 THE WITNESS:  The source of my distinguishing three kinds of  46 colonies?  47 MR. GOLDIE: 20424  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  Q  2  A   '  3  4  5  THE  COURT:  6  MR.  RUSH:  7  8  9  1  10  11  THE  COURT:  12  MR.  RUSH:  13  MR.  GOLDIE  14  15  16  THE  COURT:  17  18  THE  WITNES  19  20  21  22  23  MR.  GOLDIE  24  Q  25  26  A  27  Q  28  29  30  THE  COURT:  31  32  33  MR.  RUSH:  34  35  36  37  THE  COURT:  38  MR.  RUSH:  39  40  1  41  THE  COURT:  42  MR.  RUSH:  43  MR.  GOLDIE  44  45  46  THE  COURT:  47  Yes?  Would be Labaree, among other things, and Blackstone.  For example, case of Campbell v. Hall, argument of  counsel, Lord Mansfield in the House of Lords in 1766.  All right.  Well, my lord, these -- this is Dr. Greenwood  speaking as a lawyer about how he comes to a  conclusion about what constitutes colonies.  And that  does call for a legal interpretation and a legal  argument.  Well, I would have thought --  It's not, certainly, fixed.  :  My friend has misunderstood the question.  All --  the witness used the phrase "royal colonies", and all  he --  That was the name of the -- that Labaree gave, was  it not, or Labaree?  S:  No.  It's just simply a standard term that  scholars use to distinguish three kinds of colonies.  It's used in the 18th century in several sources.  I  can't necessarily specify that Labaree used it in any  particular place.  You said that these instructions were given to the  governors of the royal colonies?  I can list the colonies if you want.  No.  Well, you can do that later.  But can you tell  his lordship, succinctly, what a royal colony is, as  opposed to any other kind of colony?  Well, I think we have to dispose of the objection.  It seems to me, Mr. Rush, that this is an historical  fact, isn't it?  Well, my lord, what is an historical fact was what I  thought my friend was coming to and what I thought the  witness was going to, and that is what are the royal  colonies.  Yes.  What the witness I thought was about to embark upon  was the legal analysis of different types of colonies  done by Blackstone.  They might be the same thing, I suppose.  And they might not.  :  Well, he is speaking as an historian.  Historian --  he tells us historians talk about royal colonies and  other kinds of colonies.  Yes.  I think he can tell me what he understands the  royal colonies were. 20425  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 MR. GOLDIE:  2 Q   Can you do that?  As a matter of -- it's partly --  3 this is one of those areas where his evidence becomes  4 partly a matter of fact and partly a matter of  5 opinion.  But this is his belief on what the facts  6 are, and that's something that I believe all the  7 witnesses have done.  8 A  Well, the royal colonies or royal provinces were  9 colonies whose governments consisted of governors who  10 were commissioned and instructed by the Crown  11 councils, which functioned as privy councils in  12 executive matters, and as Houses of the Legislature,  13 upper houses, and elected assemblies.  So that was the  14 structure of a royal colony.  The main thing of  15 interest here is that the governors were regularly  16 instructed by the King through the Secretary of State.  17 Q   All right.  Now, can you give us some examples of  18 royal colonies?  19 A   New York, Nova Scotia, Massachusetts in this period,  20 Georgia, Quebec, East Florida, West Florida.  21 Q   Thank you.  22 A  And all but Nova Scotia had that instruction in 1763.  23 Q   Thank you.  24 You have described the debate that went on  25 between the people who wished to retain Canada and the  26 people who wished to retain Guadeloupe.  I believe you  27 refer to that as a pamphlet --  28 A   Pamphlet debate because it never affected, as far as I  29 can see, affected the government's decision to retain  30 Canada, which was made in 1761 and reaffirmed in 1762  31 by the new government under the Earl of Bute.  32 Q   Under tab 9a —  33 A   Yes.  34 Q   -- of Exhibit 1159, would you explain to his lordship  35 the significance of what is found there and what part  36 you wish to refer to?  37 A  Well, this was an important -- this was one of the  38 main pamphlets in the pamphlet war over whether to  39 retain Guadeloupe or Canada.  And this particular  40 pamphlet argued for retaining Guadeloupe, and it  41 received a considerable amount of publicity.  I  42 believe it was reprinted in the annual register.  At  43 the top of page -- I think there is only one page  44 actually filed -- the author goes into the point about  45 what's going to happen if the British Americans are  46 allowed to move westward without any control.  And as  47 I've summarized the quotation, he wrote this, that 20426  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 as the colonials "recede from the sea," they would, of  2 necessity, be "driven to set up manufactures similar  3 to those of England...and in the process of time will  4 know little, inquire little, and care little about the  5 mother-country. "  6 And most of that quotation comes from the last  7 lines there of the first paragraph.  8 Q   Now, in -- you state -- you have made a review of the  9 pamphlet literature?  10 A   Yes, I have.  11 Q   And you state -- you've given under tab 9a one of the  12 primary sources, and am I correct in my understanding  13 that other examples are found in the catalogue of  14 pamphlets in the Public Archives of Canada to which  15 you refer in footnote 10?  16 A   Yes, that's correct.  That footnote states that I made  17 a review of all the pamphlets that appear to be  18 relevant on the question, and of which are held by the  19 National Archives of Canada.  And for those that were  20 advocating the retention of Canada, none of them  21 argued that it would be a benefit that there would be  22 western expansion.  23 Q   Can you provide his lordship with an example of a  24 policy adviser to one of the framers of the  25 proclamation who held specific views with respect to  26 mercantilism and expansion?  And if you need a  27 reference, I am referring to page 18 of your report?  28 A   Yes.  Well, for the policy advisers we don't always  29 know whether they were in favour of retaining Canada  30 or not.  But in one case, William Knox was a policy  31 adviser of the Imperial government at the time the  32 policies were being worked out, which found their way  33 into the Proclamation.  He was quite clearly in favour  34 of retaining Canada as opposed to Guadeloupe, and yet  35 was against western expansion as I pointed out later  36 in my report.  37 Q   You provide the documents in greater detail?  38 A   Yeah.  His actual statements on the point.  39 Q   Yes?  40 A   But he is an example of what might be called a  41 Continental mercantilist, but he is not advocating --  42 in fact, he is very much opposed to western expansion.  43 Q   All right.  44 MR. RUSH:  And where are those sources located, please?  45 MR. GOLDIE:  We are coming to them.  They are in Part 2.A., 3,  46 which is -- is not before his Lordship, but it's later  47 on. 20427  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 THE COURT:  Well, can we be given — is it a footnote?  2 THE WITNESS:  It's tabbed.  We will be, undoubtedly, looking at  3 them.  4 MR. GOLDIE:  I am not sure that's in this volume yet, my lord.  5 THE COURT:  All right.  6 MR. GOLDIE:  7 Q   You have at footnote -- tab 12a, a document entitled  8 The Papers of Benjamin Franklin.  Why have you  9 included that and what is its significance?  10 A  Well, Franklin was the only pamphleteer I was able to  11 come across, published prior to the proclamation, who  12 advocated western expansion as a positive good.  13 Franklin stood isolated, as it were, on that point.  14 And in fact, admitted the strength of his opponents'  15 case.  That is, those who argued against western  16 expansion, he admitted at page 78, were having an  17 impact.  18 Q   Page what?  19 A   I think it's page 78 of -- the internal page 78 of the  2 0 pamphlet.  And I quote at length from him just to show  21 his argument.  His argument was, basically, as the  22 settlers moved west they would be too busy farming to  23 take up manufacturing, and those in the east, the  24 sparehands in the east would be moving west.  But as I  25 say, it stands isolated and is -- I don't think  26 reflects the conventional wisdom of the day.  27 Q   All right.  And the —  28 MR. RUSH:  Well, I object to that, my lord.  29 MR. GOLDIE:  Well —  30 MR. RUSH:  The pamphlet speaks for itself on page 78.  That's  31 really what the witness is referring us to.  32 MR. GOLDIE:  33 Q   No.  His evidence of importance though, my lord, stems  34 from the fact that he has made review of the  35 pamphlets, and his opinion is that Franklin stands  36 alone, based upon that.  And the sources of his  37 information with respect to his research are found in  38 footnote 10.  39 The -- you next refer, Dr. Greenwood, to the  40 structure of governmental decision making on colonial  41 matters, and at footnote 13 you have an extract from  42 the Commentaries of Blackstone.  And what is the  43 purpose of including that in your documentary source?  44 A  Well, the entire section is really background provided  45 for people who are not intimately acquainted with the  46 constitution in the 18th century.  And the quotation  47 from Blackstone supplies an introduction in that it 2042?  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 summarizes in fairly brief compass, the classic theory  2 of the balanced constitution of the King representing  3 the principles of monarchy, the Hereditary Monarchy.  4 The House of Lords representing aristocracy and  5 supposedly wisdom.  And the Commons supposedly  6 representing the nation or democracy or feelings of  7 humanity.  But it's simply an introducer into the way  8 one should look, I guess, at the constitution of the  9 18th century.  10 Q   All right.  Having done that, am I correct in my  11 understanding that the secondary sources -- or the  12 sources that you have found useful are found in  13 footnote 14; is that correct?  14 A   Yes.  They are — yes, 14.  15 Q   And are there any other references that you wish his  16 lordship to be made aware of in connection with this  17 introductory -- introduction into the constitution and  18 decision making of the British government in the  19 early -- mid to late 18th century?  20 A  Well, I -- you know, I've been teaching this for  21 almost a quarter of a century, so there are many  22 sources, you know, that I have used and perhaps can't  23 recall at my finger tips.  But one important secondary  24 source that might be added would be Sir Lewis Namier.  25 Q   Yes?  26 A   The Structure of Politics at the Accession of George  27 III.  That's The Structure of Politics at the  28 Accession of George III, originally published in 1928,  29 second edition, London, 1961.  As far as the primary  30 sources are --  31 MR. RUSH:  Excuse me.  That is an addition to what's in footnote  32 14?  33 THE WITNESS:  That's right, yes.  34 MR. RUSH:  And has that been disclosed?  35 MR. GOLDIE:  It is a public treatise.  36 MR. RUSH:  It may well be.  That wasn't my question.  37 MR. GOLDIE:  Well, the disclosure is limited by the defendant to  38 what is in our hands and it's certainly not in our  39 position.  40 THE COURT:  Well, what I understand you are doing, witness, is  41 you're adding a reference -- published reference to  42 footnote 10?  43 THE WITNESS:  I think it's footnote 14, my lord.  44 THE COURT:  Fourteen, sorry?  45 THE WITNESS:  Yes.  And I was asked what additional sources, and  46 I was trying to respond to that.  Do you wish me to  47 give additional primary sources? 20429  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 MR. GOLDIE:  2 Q   Not unless they are in your -- not unless they are  3 footnoted.  4 A   Oh, okay.  5 Q   You have referred -- would you explain, please, so far  6 as the decision making process of government is  7 concerned, what is meant by "inner cabinet"?  8 A  Well, there was an inner and an outer cabinet.  The  9 outer cabinet by the 1760's had become a purely  10 honorary body.  And, for example, the inner cabinet of  11 nine or ten ministers alone ratified the Treaty of  12 Paris.  It wasn't sent to the outer cabinet.  There  13 have been several councils in the past.  They've grown  14 too large and a smaller body had emerged to advise  15 with the secrecy and dispatch needed in foreign  16 affairs.  The last event of that kind was the  17 emergence of the inner cabinet in the 1730's through  18 to the 1760's and they called themselves His Majesty's  19 Servants, who were entrusted with his most secret  20 affairs.  They were technically members of the privy  21 council but they are the functioning advisory body at  22 the highest level.  23 Q   And the source of your information with respect to  24 that is footnotes 17, 18 and 19?  25 A  And the material which is relevant in note 14.  2 6 Q   And 14, yes.  Thank you.  27 And was the King an active part of the decision  28 making process?  29 A   Yes.  In terms of the potential, in any case.  The  30 executive power was vested in the King and he was not  31 a nominal ruler.  He might, by preference, allow the  32 politicians a great leeway but he always had to be  33 reported to and had to approve the decisions.  He also  34 appointed the First Minister -- the ancestor to the  35 Prime Minister -- and he had the final word on  36 executive policy.  Now this could vary with the  37 personalities or the circumstances, but during the  38 American War, for example, George III is often  39 described as "his own Prime Minister".  Earlier in the  40 period we are dealing with, in 1763, he let  41 politicians mainly make the decisions but they had to  42 be cleared through him.  43 Q   All right.  You have described at -- or you are aware  44 of and are able to describe, are you, the particular  45 make-up and relation to government of the Board of  46 Trade?  47 A   Yes. 20430  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q   And it's -- its division into colonial -- who the  2 Cabinet Minister was, was responsible for colonial  3 policy?  4 A   Yes.  Take the latter first.  There were two --  5 physically, there were two Secretaries of State  6 although the office was one.  And there was a  7 Secretary of State for the Northern Department who  8 dealt with Russia, Scandinavia, the Germanys and so  9 on.  The Secretary of State for the Southern  10 Department who dealt with, say, France and Spain and  11 the colonies.  And an important point there is, I  12 think, that the Southern Secretary had intimate  13 knowledge of foreign policy related to France and  14 Spain, for example, in the negotiations leading to the  15 Treaty of Paris, as well as the Royal Proclamation.  16 Q   All right.  Now, I made reference to the Board of  17 Trade.  Can you tell his lordship what that was?  18 A  Well, it was a specialized Royal Commission  19 established first in 1696.  In our period it consisted  20 of seven members and a president.  The persons  21 appointed to the Board of Trade in 1763, there were --  22 they were usually appointed for party political or  23 faction political reasons.  These were sinecures,  24 essentially.  I mean they did some work but not a  25 great deal.  They knew something about the colonies.  26 The Board itself was really a Board for -- Board of  27 Report.  It had no executive powers in this period.  28 It did not, for example, correspond with the  29 governors.  And it was -- it could -- its machinery  30 could be initiated only by the Secretary of State or  31 the plantations committee of the privy council which  32 was essentially the cabinet meeting in public.  33 Q   Would you list the members of the Board, and if you  34 need a reference to assist you, at page 29, I believe  35 you list those.  36 MR. RUSH:  When and at what time?  37 MR. GOLDIE:  38 Q   Well, perhaps you can tell his lordship what period we  39 are talking about?  40 A   It would be the period from the spring -- let's say  41 April 1763 to August -- early August 1763.  42 Q   All right.  Now, who were the members of that Board?  43 A  Well, the President was Lord Shelburne, the Earl of  44 Shelburne who was the --  45 Q   Well, just give us the names and --  46 A   Okay.  Lord Shelburne, President.  Soame Jenyns,  47 S-O-A-M-E, J-E-N-Y-N-S. 20431  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 Q   A member of Parliament?  2 A   He is a member of Parliament.  3 Q   Yes?  4 A   John Yorke, with an E.  5 Q   Yes?  6 A   Bamber Gascoyne, B-A-M-B-E-R, G-A-S-C-O-Y-N-E, he was  7 a lawyer and an M.P.  Edward Bacon, George Rice M.P.  8 and Edward Eliot, with one T and one L.  9 Q   And we've heard the name given by Mr. Morrison, but  10 could you comment who John Pownall is?  11 A   Yes.  John Pownall was the Principal Secretary of the  12 Board of Trade.  So he would have overall control of  13 the archives and of the drafting of reports.  And he  14 was far more than that, though, he was a policy  15 adviser to the Board's presidents.  He had been  16 associated with the Board since 1741 and it's  17 generally conceded, I think, that he probably knew  18 more about the colonies than any official or  19 politician or other official or politician in Great  20 Britain.  21 Q   I'm sorry.  Go ahead?  22 A   I was just saying, he had exercised an enormous  23 influence, well-known, over Lord Halifax, who had been  24 President of the Board of Trade in the 1740 's and  25 '50's, and he exercised a great deal of influence over  26 Lord Shelburne during the policy formation period and  27 that's the year before the proclamation.  28 Q   And your sources, amongst others, for that statement  29 with respect to Pownall's influence, is found in  30 footnotes 23 and 24?  31 A   Yes.  But several manuscript documents also dating  32 from the period of the policy formation which makes it  33 clear of the role he played and the draft proclamation  34 itself.  35 Q   Those are documents we will be coming to?  36 A  We will be coming to, yes.  37 Q   Yes, thank you.  38 Now, you subsequently address the question of the  39 genesis of the policy of the Royal Proclamation and  40 you make -- oh, I should say, my lord, I made  41 reference to certain papers and they are -- I should  42 have the witness identify them.  Under tab 20, what  43 are the -- what is the document we find there?  44 A   These are minutes of the cabinet meetings held  45 under -- when George Grenville was First Minister in  46 1763 to '65, I believe.  And they are found in a  47 source John R.G. Tomlinson, Additional Grenville 20432  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 Papers, 1763 to '65.  2 Q   Perhaps if you could just identify those at 25 and 26.  3 We can come back to them at a later point.  Just  4 identify the documents at 25, 26 and 27?  5 A   Yes.  The first in 25 is a copy of a letter from the  6 Earl of Egremont to Jeffrey Amherst who was  7 Commander-in-Chief, dated Whitehall, January 27th,  8 1763.  And there are some references to the need to  9 conciliate the affections of the Indians by protecting  10 their lands from encroachments.  11 THE COURT:  Where do I see that?  12 THE WITNESS:  That's the first textual page below that insert,  13 Fitch Papers.  14 THE COURT:  The letters?  15 THE WITNESS:  The last — last eight or nine lines.  16 MR. GOLDIE:  17 Q   Of the mid portion?  18 A   Yeah.  19 THE COURT:  What page?  20 MR. GOLDIE:  My lord, the -- there is one -- as the witness put  21 it, one textual paper and the heading is the Earl --  22 the words "Earl of Egremont to Jeffrey Amherst."  23 Amherst was the Commander-in-Chief in --  24 THE WITNESS:  In North America.  25 THE COURT:  Am I in the wrong place?  26 MR. GOLDIE:  Tab 25.  27 THE COURT:  Oh, I'm sorry.  All right.  What page?  28 MR. GOLDIE:  It's the — it's the first of the two printed  29 pages.  3 0 THE COURT:  Yes.  31 MR. GOLDIE:  32 Q   The letter is to Sir Jeffrey Amherst and he was the  33 Commander-in-Chief of North America?  34 A   Yes.  35 Q   Of the British army?  36 A   Yes.  37 Q   And the Earl of Egremont at the time was?  38 A  Was the Southern Secretary.  39 Q   And the date of the letter is January 27, 1763?  40 A   '63.  41 Q   And the portion that you referred to is in the mid  42 paragraph which begins with the words, "This matter,  43 you shall think most expedient"?  44 A   Yes.  45 MR. RUSH:  Where is this?  46 MR. GOLDIE:  In the — and then the words —  47 THE COURT:  I haven't found that, I'm sorry. 20433  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. GOLDIE:  Well, does your lordship have —  THE COURT:  I have Fitch Papers.  MR. GOLDIE:  Yes, about three-quarters of the way down that  paragraph.  THE COURT:  "And you will accordingly make the necessary  inquiries"?  MR. GOLDIE:  Q   Yes.  And if your lordship will go on to that:  "That His Majesty may be able to judge what  farther Orders it may be expedient to give to  prevent effectually any Hazard of an Indian  War, His Majesty having it much at heart to  conciliate the Affection of the Indian Nations,  by every Act of strict Justice, and by  affording them His Royal Protection from any  encroachment on the Lands they have reserved to  themselves for their hunting Grounds, and for  their own Support and Habitation: and I may  inform you that a Plan, for this desirable End,  is actually under consideration."  And you note that that is dated January 27th,  1763.  And this is relevant to the policies embodied  in the Royal Proclamation; is that correct?  A   Yes.  MR. RUSH:  My lord, I take it that we can assume that the underlining and any marginal notations and so on, and any  interlineations, are not part of the document?  I am sure that is right.  THE COURT:  MR. GOLDIE:  Q   Yes  A  Q  A  A  MR. RUSH:  THE COURT  Now, would you explain to his lordship the  document under tab 2 6?  Yes.  That's a letter in manuscript form, copy of a  manuscript letter from Pownall, the Secretary of the  Board to Egremont.  Yes?  15th of February, 1763.  And it's found in the  Egremont papers in the Public Record Office.  It may be difficult for his lordship to -- or for the  assembled audience to read that.  Perhaps, can you  make it out, Doctor?  Yes, I can summarize it.  Well, I would prefer, my lord, that he read it.  I  can't read it.  He's probably gone over it.  :  I can't read it.  Oh, I can make some of it out, but 20434  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 not all of it.  2 MR. GOLDIE:  3 Q   Well, perhaps --  4 A  Well, it's page 2, internal page 236.  I am not sure  5 that it is worth the reading because all he says is  6 perhaps the Board of Trade is not competent to do  7 this, to work out policies for North America, and  8 perhaps we should put it in the hands of a special  9 committee of the privy council.  10 THE COURT:  Where does it say that?  11 THE WITNESS:  I think at the bottom of page 236.  12 MR. GOLDIE:  13 Q   That is —  14 A   "Whether this great business".  15 Q   -- paragraph 4?  16 A   I have it as three here.  17  18 "Whether this great business would not be more  19 effectual and more expeditiously done by a  20 select Committee of the Privy Council,  21 consisting of the two Secretaries of State and  22 First Lord of Trade."  23  24 So he is saying that the Board of Trade as such  25 is probably not a good instrument, why don't we have a  26 special committee.  27 Q   All right.  And this is all part of the beginning of  28 the —  29 A   This is trying to work out how the policy process will  30 be organized.  31 Q   All right.  And under tab 27 you have a letter from  32 the King to Lord Bute?  33 A   Yes.  34 Q   And who is Lord Bute?  35 A   Lord Bute was the First Minister at that time.  And it  36 was George Ill's personal favourite, political  37 favourite.  38 Q   And is he the "D. Friend" that is referred to in that  39 letter?  40 A   Yes, "Dear Friend".  41 Q   And this, too, is part of the context of the  42 assignment to the Board of Trade in the eventual  43 production of the Royal Proclamation; is that correct?  44 A   That's correct.  45 Q   Thank you.  46 Now, can you tell his lordship approximately when  47 Lord Egremont indicated that he was working on an idea 20435  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1 for the -- of the new settlement of North America?  2 MR. RUSH:  Well, perhaps the ground work should be the document  3 where it indicates that that's happening, my lord.  4 MR. GOLDIE:  5 Q   Well, the source of that is -- would you tell his  6 lordship the source of any comments you make, and I am  7 referring to footnote 28, page 34, and it refers to a  8 statement that you are making at page --  9 A   Yes.  That's a letter dated March 11th, 1763.  10 Q   Yes?  11 A   From Egremont to Grenville who was then the First  12 Minister.  13 Q   And the source of that is?  14 A  And the source -- it's a quotation taken from a  15 secondary source, Sosin, Whitehall and the Wilderness,  16 page 53, note one.  17 MR. RUSH:  Do we have that here?  18 MR. GOLDIE:  19 Q   No.  That's a treatise quoted by Mr. Morrison.  20 That was March I think you stated?  21 A   Yes.  22 Q   Can you give us any further chronological information?  23 I'm referring to page 34?  24 A  Well, perhaps you are referring to the letter of May  25 5th --  26 Q   Well —  27 A   -- 1763.  28 Q   Well prior to that, am I to understand that a decision  29 was taken to annex the Labrador coast to Newfoundland?  30 A   To Newfoundland.  I think that was March 24th, '63.  31 Q   And the source of your information for that is  32 footnote 29?  33 A   Yes.  34 Q   And then you were about to refer to a letter of May  35 5th?  36 A  May 5th, 1763, a letter from Egremont to the Board of  37 Trade.  38 MR. GOLDIE:  And that, my lord, is under your book of  39 authorities under tab 30 -- not authorities,  4 0 documents.  41 THE COURT:  All right.  Before we turn to that, can we take the  42 afternoon adjournment, please.  43 THE REGISTRAR:  Order in court.  Court stands adjourned for a  44 short recess.  45  46  47 20436  F.M. Greenwood (for Province)  In chief by Mr. Goldie  1  2  3  4 (PROCEEDINGS ADJOURNED AT 3:00 P.M.)  5  6  7  8 I hereby certify the foregoing to be  9 a true and accurate transcript of the  10 proceedings herein transcribed to the  11 best of my skill and ability  12  13  14  15  16 Toni Kerekes, O.R.  17 United Reporting Service Ltd.  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 20437  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  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  THE COURT:  Yes, Mr. Goldie.  MR. GOLDIE:  Thank you, my lord.  Q   Dr. Greenwood, you had told us that in March Egremont  had informed Mr. Grenville that he was working on a  rough idea of the new settlement of North America.  You had told us that on March 24 the Labrador coast to  Newfoundland had been -- the Labrador coast had been  annexed to Newfoundland and I want you now to come to  a document under tab 30 which is a letter dated May 5,  1763 and would you tell his lordship who that is from,  to whom it is addressed and its significance, please?  A   Yes.  The letter is from the Secretary of State, Lord  Egremont, to the Board of Trade May 5, 1763,  requesting the board to report advising how the  Imperial government should organize His Majesty's new  acquisitions in North America, the Caribbean and  Africa.  The Board of Trade was to recommend such  regulations as would produce the greatest commercial  advantage from the recent cessions and North America  was to be considered the principal object of their  recommendations.  MR. RUSH:  My lord, I think the witness should refer to the  portion of the document he's going to refer to.  Well, I will be quoting from it in a minute.  Well, I am sorry, but I can't find the quote.  MR.  MR.  A  RUSH:  GOLDIE:  Q   Well, if you would look -- if my friend would just  have some patience and if you would look at page 94  towards the bottom of the page he'll find what I  assume the witness is now about on refer to.  A   Yes.  Q   If he doesn't I will be surprised.  A  Well, the questions that were asked the Board of Trade  are found in the middle of page 94 and the questions  which relate to North America in general are one, or  first:  "What New Governments should be established &  what Form should be adopted for each new  Governments? and where the Capital, or  Residence of each Governor should be fixed?  2ndly  What Military Establishment will be  sufficient?  What new Forts should be erected?  and which, if any, may it be expedient to  demolish? 2043?  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 3rdly  In what Mode least Burdensome and most  2 palatable to the Colonies can they contribute  3 towards the Support of the Additional Expense,  4 which must attend their Civil & Military  5 Establishment, upon the Arrangement which Your  6 Lordships shall propose?"  7  8 End quote.  He said on the second question related --  9 this is at the bottom of page 94, the second question  10 relating to security the board was to --  11 Q   Security of North America?  12 A   Yes.  Military security of North America was to take  13 into account European powers, but also, quote:  14  15 "The Preservation of the Internal Peace &  16 Tranquility of the Country against any Indian  17 Disturbances,"  18  19 Unquote.  And then at the --  20 Q   Well —  21 A   Sorry.  22 Q   Sorry, go on.  23 A  At the bottom page 94 he begins to elaborate or  24 elaborates on policies for the Indians and I don't  25 know whether you wish me to quote that --  26 Q   Yes.  27 A   -- segment.  28 Q   You are directing his lordship's attention to this,  29 are you?  30 A   Yes.  Yes.  31 Q   All right.  Proceed.  32 A   Beginning at the beginning of the last full paragraph  33 on the page:  34  35 "Tho' in order to succeed effectually in this  36 Point, it may become next to erect some Forts  37 in the Indian Country, with their Consent, yet  38 His Majesty's Justice & Moderation inclines Him  39 to adopt the more eligible Method of  40 conciliating the Minds of the Indians by the  41 Mildness — "  42  43 And I am changing pages now to 95:  44  45 " -- Mildness of His Government, by protecting  46 their Persons & Property & securing to them all  47 the Possessions, Rights and Privileges they 20439  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  4  5  6  7  Q  8  A  9  10  11  Q  12  A  13  14  Q  15  16  17  A  18  19  Q  20  21  A  22  Q  23  24  A  25  Q  26  A  27  28  Q  29  30  A  31  Q  32  33  A  34  Q  35  36  37  38  A  39  40  41  42  43  THE COURT  44  A  45  THE COURT  46  A  47  THE COURT  have hitherto enjoyed, & are entitled to, most  cautiously guarding against any Invasion or  Occupation of their Hunting Lands, the  Possession of which is to be acquired by fair  Purchase only."  All right.  Unquote.  And this was a guideline and I think it's  perhaps the only time that the board was given a real  guideline by Egremont on policy.  When you say a guideline, you are referring to --  You must take this into account when you come forth  with your recommendations.  Yes.  And you say that's the only guideline of all of  the matters which the board was asked to consider in  this?  It's the only one which significantly narrowed their  options, yes.  All right.  Now, there is -- if one goes to the end of  the letter --  Yes.  -- on page 96 of the document under tab 30, you find a  reference to enclosures?  Yes.  Do you see that?  Yes.  It's written "enclosure," but I presume it  should be "enclosures."  Does that set out the total number of enclosures that  accompany this letter?  No, it does not.  No, it does not.  How many in total were sent with the letter to the  Board of Trade?  Thirty.  And can you indicate to his lordship which -- and by  reference to the documents themselves, which of these  were the most significant in relation to the issues  before the court?  Yes.  Well, most of the documents sent were mere  informational documents such as a copy of the Treaty  of Paris.  There were three enclosures, however, which  embodied policy proposals.  There was a circular  letter on Indian policy dated 16 March 1763.  :  Just a moment, please.  On Indian matters dated -- ?  Indian policy dated 16 March 1763.  :  I am sorry, I can't write quite as fast.  March 16?  Yes.  :  1763? 20440  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 A   1763, which had been sent from the secretary to the  2 governors and this was an enclosure.  This particular  3 circular letter had advised the governors to meet with  4 the Indians and assure them that there would be no,  5 you know, encroachments and that His Majesty would  6 protect them.  The second policy document was an  7 undated anonymous memorandum entitled quote, "Plan of  8 Forts & Garrisons -- "  9 MR. GOLDIE:   Excuse me.  To assist his lordship, this is a  10 document under tab 32, my lord.  11 THE COURT:  Is the first one a tab in the —  12 MR. GOLDIE:  No.  Perhaps I can get the source of that for you,  13 but it's not in the book.  14 THE COURT:  All right.  15 MR. GOLDIE:  16 Q   Now, you are referring to the document under tab 32,  17 are you, doctor?  18 A   Yes, I am.  19 Q   And you commenced to give the -- to give the title.  20 It's headed "Distribution of Troops, 1763, Plan of  21 Forts & Garrisons proposed for the Security of North  22 America, and the Establishment of Commerce with the  23 Indians"?  24 A   Yes.  25 Q   And you say there is no known author of that?  26 A   No.  Scholars have speculated on the author.  27 Q   Is there any consensus amongst scholars?  28 A   No, there is not.  There is consensus that it's a very  29 important military policy document, but no consensus  30 on the author.  31 Q   All right.  And would you indicate to his lordship the  32 points that -- in the document to which you draw his  33 lordship's attention?  34 A   Right.  Internal —  35 THE COURT:  I am sorry, I am lost again.  I was getting three  36 important policy documents.  37 MR. GOLDIE:  Yes.  38 THE COURT:  Now I can't even find where my notes are.  What  39 document were we looking at when you referred me to  4 0 tab 32, do you remember?  41 MR. GOLDIE:  That's an undated anonymous memorandum entitled  42 "Plan of Forts & Garrisons Proposed for -- "  43 THE COURT:  Sorry, Mr. Goldie.  We were looking at a document  44 and he was telling me about the enclosures.  45 MR. GOLDIE:  Oh.  Yes.  Well, that was 30.  46 THE COURT:  That was 30?  47 MR. GOLDIE:  Yes.  And that was Egremont's letter to the Board 20441  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 of Trade.  2 THE COURT:  Just a moment.  Yes.  All right.  Now, I have the  3 first two of those three important policy proposals.  4 Before we go to one of them, can I find out what the  5 third one was?  6 MR. GOLDIE:  Yes.  7 Q   The third one, would you tell his lordship what the  8 third one was?  9 A   The third one is Hints, to give it a short title in  10 tab 34.  11 THE COURT:  All right.  That's fine.  Thank you.  Now you want  12 to go to tab 32?  13 MR. GOLDIE:  14 Q   I was just going to ask the witness, my lord, if he  15 would look at tab 32 and indicate to your lordship the  16 particular points or particular part of it which has  17 some -- which you regard as having some significance?  18 A   Yes.  I refer your lordship to page, internal page 7.  19 Q   It's the —  20 A   It would be the first full paragraph on internal page  21 7.  And there the author lists five policy  22 considerations.  For example, the first:  23  24 "To keep His Majesty's New Subjects in Canada &  25 Louisianna in due Subjection.  26 2ndly To retrain the Inhabitants of our ancient  27 Provinces in a State of Constitutional  28 Dependance upon Great Britain.  29 3d  To create a proper Respect for Us &  30 establish necessary Authority among the  31 Indians.  32 4th  To prevent any Encroachments of the French  33 and  34 5thly  To protect our Own & to Annoy the  35 Colonies and disturb the Commerce of our  36 Enemies in a future War."  37  38 So these are are the five purposes laid out by the  39 author for military policy at this time.  And there  40 are no other general purposes stated in the  41 memorandum.  42 Q   And from item number four "to Prevent any  43 Encroachments of the French," Dr. Greenwood, that  44 would necessarily assume that the author was unaware  45 of the cession of Louisianna to Spain?  46 A   Yes.  47 MR. RUSH:  I object to that, my lord.  It's leading, number one. 20442  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 It's suggestive of what -- or what was or was not in  2 the mind of the author.  3 MR. GOLDIE:  Well —  4 MR. RUSH:  The witness — if Mr. Goldie wants to ask the witness  5 about, as he did, is there any portion of this that  6 you think should be drawn to his lordship's attention,  7 he did draw that to your attention.  8 THE COURT:  Yes.  9 MR. RUSH:  Presumably in its significance he would have  10 something to say.  But I -- I --  11 THE COURT:  Well, it was leading, wasn't it, Mr. Goldie?  12 MR. GOLDIE:  Yes, it was intended to be leading, my lord,  13 because I didn't think there was any doubt about it.  14 THE COURT:  No.  All right.  15 MR. GOLDIE:  16 Q   Now, doctor, before you go on, the -- I referred to  17 the fact that -- or you referred to the fact that the  18 enclosures in Egremont's letter under tab 30, the list  19 of enclosures did not appear to be complete?  20 A   That is correct.  21 Q   And your source in respect of that is tab 31 --  22 footnote 31?  23 A   Footnote 31, the Board of Trade journals for 6 May  24 1763.  That's a printed primary source.  25 Q   And that is the one that contains the full list of --  26 A   That contains --  it actually contains 31 items, but  27 one of them is the actual letter of May -- May 5, so  28 it's obviously not an enclosure.  2 9          Q   Right.  30 A   So it's 30, and I don't think we have that in a tab  31 form.  32 Q   And with respect to the document under tab 32, the  33 anonymous I will call it military memorandum?  34 A   Yes.  35 Q   There are secondary sources which you have consulted  36 and they are referred to in tab 32?  37 A   Yes.  38 MR. RUSH:  Footnote 32.  39 MR. GOLDIE:  Footnote 32, I am sorry.  Thank you.  40 Q   Footnote 32, the document itself is, you understand,  41 tab 32 of Exhibit 1159, but the secondary source which  42 examines it is collected -- are collected in footnote  43 32.  Now, I want to come to the document to which you  44 have referred as the Hints and that is under tab 39 --  45 33?  46 A   33.  47 THE COURT:  34 I thought you said.  Is it 33 or 34? 20443  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 MR. GOLDIE:  I think 30 —  2 Q   Which is it?  3 A   33.  4 Q   33.  And under that, what is -- what is the source of  5 the text which we have here?  6 A   It's an edition by Verner W. Crane, C-r-a-n-e, which  7 was printed in Volume 8 Mississippi Valley Historical  8 Review, 1921/22 at pages 370 to 373.  There is a  9 contemporary copy, that is eighteenth century copy, in  10 Colonial Office Series 323 in the public record  11 office.  12 Q   And that source as well as the Crane source is  13 referred to in footnote 33 of your --  14 A   Yes.  15 Q   Yes.  Now, would you tell us what part of the document  16 that is referred to as Hints, and this is, I take it,  17 is the way in which it is referred to in the  18 literature?  19 A   Yes, it is.  It's full title, which may be relevant  20 here, is, quote, "Hints relative to the division and  21 government of conquered and newly acquired countries  22 in America," unquote.  I call it Hints, but the title  23 might be important because the document may need to be  24 dated.  25 Q   Yes.  All right.  In fact before you go on to indicate  26 to his lordship the significant parts, could you tell  27 us something about the date of the document?  28 A  Well, can I go into authorship first?  Would that be a  29 little more convenient?  30 Q   Well, tackle it any way you wish.  31 A   Okay.  There is a very high level of consensus that  32 the author of this document was Henry Ellis, high  33 level consensus in the scholarly community that the  34 author was Henry Ellis who was the former Governor of  35 Georgia.  36 Q   Now, am I correct in my understanding that the  37 secondary authorities that you have examined in  38 arriving in support of that statement is found in  39 footnote 34?  40 A   Yes.  And there is also -- there are also primary  41 sources which indicate that in 1763 Ellis was a very  42 influential advisor to Lord Egremont, and I don't  43 believe we filed these documents but I can read them  44 out.  45 Q   Just identify the footnote number --  46 A   Oh.  Okay.  Footnote —  47 Q   -- that you referred to in support of your statement 20444  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 that Ellis was a protege of Egremont?  2 A   Right.  Footnotes 36, 37 and 38.  3 Q   Thank you.  4 A  And also there is a scholarly consensus on that point  5 as well.  Now, the dating of the document cannot be  6 later than the 24th of March 1763 because the author  7 of Hints - from now on I am going to use Ellis - Ellis  8 advocated the annexation of Labrador to Newfoundland,  9 a decision which was made that day.  The document  10 cannot be earlier in my view than November 3, 1763  11 because the title refers to new acquisitions and  12 November 3, 1763 was the date of the peace  13 preliminaries which preceded the Treaty of Paris.  So  14 between November 3, -- '62, I am sorry.  That should  15 be '62 and March 24, 1763.  16 Q   All right.  Now, having established or at least  17 indicated to his lordship the sources for your  18 information or your opinions with respect to the date  19 and author, can you indicate to his lordship the parts  20 that you consider to be significant and to state  21 something of its significance?  22 A   Yes.  Ellis recommended in Hints that the vast extent  23 of Canada be divided, that the -- that Canada be  24 divided into two colonies with a division point being  25 Trois Riviere or Three Rivers.  For the time being he  26 recommended legislative power should be vested in  27 governors and appointed councils.  Florida was to be  28 divided into two provinces, a peninsular province and  29 one extending in the west to the Mississippi.  One  30 proposal put forward in Hints was the establishment of  31 a western boundary between settlement in the older  32 colonies and in the Indian country, so boundary  33 between settlement and the Indian country.  34 Q   Could you refer to the particular part of the document  35 that you are referring to?  36 A   Yes.  It's internal page 371, fourth full paragraph  37 towards the bottom of the page.  And I will quote  38 that:  39  40 "It might also be necessary to fix upon some  41 Line for a Western Boundary to our ancient  42 provinces, beyond which our People should not  43 at present be permitted to settle, hence as  44 their Numbers increased, they would emigrate to  45 Nova Scotia, or to the provinces on the  46 Southern Frontier, where they would be useful  47 to their Mother Country, instead of planting 20445  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 themselves in the Heart of America, out of the  2 reach of Government, and where, from the great  3 Difficulty of procuring European Commodities,  4 they would be compelled to commence Manufacturs  5 to the infinite prejudice of Britain."  6  7 Unquote.  8 Q   I'm not sure, doctor, if I -- if you referred to  9 footnote 38 as part of your authorities for Ellis'  10 authorship.  If I didn't, I'd ask --  11 A   I believe so.  12 Q   -- did you?  13 A   I believe so, and the answer is yes.  14 Q   All right.  Thank you.  15 A   I might note here that while Ellis was recommending a  16 boundary line between settlement and the Indian  17 country, he did not specify where that boundary line  18 should be.  19 Q   Right.  20 A   It doesn't appear in the document.  21 Q   And in the part immediately following what you have  22 quoted, there is a recommendation that the country to  23 the westward of the boundary be put under the  24 immediate protection and care of the officers  25 commanding at the distant posts?  26 A   Yes.  27 Q   And for the settlement of disputes amongst traders  28 and/or traders with the Indians, and so that's a  29 recommendation with respect to jurisdiction of the  30 courts?  31 A   Yes.  32 Q   Yes.  All right.  And the parts that you have referred  33 to, do they find any reflection in the Royal  34 Proclamation?  35 MR. RUSH:  Well, doesn't that call for an interpretation, my  36 lord?  37 MR. GOLDIE:  Well —  38 THE COURT:  In one sense yes; in another sense it may be a  39 matter of just pointing to a paragraph which becomes a  40 matter of fact.  41 MR. RUSH:  Then the witness should be directed to do that, I  42 think, in my submission.  43 MR. GOLDIE:  Well, what he can do surely, my lord, is say these  44 things found their reflection in the Royal  45 Proclamation.  And if my friend requires him to go to  46 the Proclamation itself, we can do that.  47 MR. RUSH:  Well, that — that's the point, my lord.  That is a 20446  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.  MR. RUSH  THE COURT  MR.  THE  THE  THE  THE  MR.  conclusion.  GOLDIE:  All right.  Q   Mr. -- or Dr. Greenwood, would you state whether any  of these provisions found their counterpart in the  Royal Proclamation and identify in the Royal  Proclamation those parts that you have reference to  what you make -- when you give your evidence.  I still say that's a conclusion, my lord.  That's a  conclusion for your lordship to compare the documents  and to determine whether in your view the document is  read such that you can conclude that they found their  way into the Proclamation.  That is your conclusion,  not the witness'.  Well, ultimately it must be mine, but I can be  assisted.  If something -- if it's vague and uncertain  about whether it is what the witness says it is, then  it certainly is my responsibility, but if it's a  matter as straightforward as I think this is, surely I  am merely having my attention directed to it so I can  make the conclusion.  I won't be able to reach that  conclusion if I'm -- unless I go hunting on my own,  which maybe I will do.  Maybe counsel will direct me  to it in argument.  Maybe all kinds of things will  happen.  I don't understand what we are fighting about  here.  It doesn't seem to be much between you -- I am  sorry, there is much between you, but it seems to me  that you're blunting your swords over a mouse or less.  GOLDIE:  Or less.  COURT:  I don't see what the importance of this one is.  So  this one, I think, is not a matter of substance.  Incidentally, a matter of much greater importance, I  notice the lie St. Jean, that's Prince Edward Island,  I guess?  Yes.  Is that where Prince Edward Island came --  Yes, it was.  At the Treaty of Paris.  At the Treaty of Paris?  Yes.  I am sorry, Mr. Goldie.  A  COURT  A  COURT  A  COURT  GOLDIE:  Q   Dr  A  Greenwood, can you indicate to his lordship by  reference to Hints and to the Royal Proclamation, and  take your time over those parts of Hints, which find  some reflection in the Royal Proclamation?  Well, beginning with the geographical recommendations,  all of the geographical recommendations except for the  division of Canada were reflected in the Royal 20447  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 Proclamation.  2 Q   And you are --  3 A   Do you want me to specify?  4 Q   I am sorry, go ahead.  5 A   Do you want me to specify them here?  6 Q   Yes, please.  Thank you.  7 A   Paragraphs E and F, Florida was divided into two.  8 Paragraph I, annexation of lie St. Jean and lie  9 Royale, Cape Breton, to Nova Scotia, this was  10 recommended by Ellis.  The annexation of Labrador to  11 Newfoundland, but I just can't find the paragraph at  12 the moment.  13 Q   Well, that was accomplished through -- that was  14 done --  15 A   Done earlier, yes.  16 Q   Yes.  17 A  As far as a boundary line between settlement and the  18 Indian country, that would appear in paragraph U and  19 paragraph V.  2 0 Q   And you say that the recommendation of the government  21 of Quebec to be broken into two was not followed?  22 A  Was not followed and the recommendation to delay  23 assemblies was not followed either in the  24 Proclamation.  The structure of government for the two  25 Floridas, the Royal Form of Colony recommended by  26 Ellis was followed in the Proclamation.  27 Q   Thank you.  Now, the next document to which I wish to  28 refer you to is in the -- is in the Exhibit 1159 under  29 tab 45 and that is sometimes known as the Knox  30 memoranda?  31 A   Yes.  32 Q   I shouldn't say document.  There are several  33 documents.  But would you tell us first who the -- who  34 William Knox is?  35 A   Yes.  William Knox was a protege of Edward Ellis.  36 Q   Of Edward Ellis?  37 A   Sorry.  Of -- excuse me, of Henry Ellis.  38 Q   Yes.  39 A   He was a councillor, provost marshal and colonial  40 agent for Georgia and he followed his patron, as it  41 were, to London.  42 Q   Now, is the source of your information with respect to  43 Knox and his career footnote 44?  44 A   Yes.  45 Q   Thank you.  Proceed.  4 6 A   Late February 17 63, Knox submitted three memoranda to  47 the Earl of Bute dealing with colonial policy and 20448  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  4  5  Q  6  1  7  A  8  Q  9  i  10  11  A   '  12  13  14  15  16  1  17  18  Q  19  THE COURT:  20  A  21  MR. GOLDIE  22  23  Q  24  A  25  ]  26  27  Q  28  29  A   '  30  31  32  Q  33  A  34  Q  35  A   ]  36  Q  37  A  38  Q  39  40  41  A  42  43  44  Q  45  A  46  Q  47  these memoranda which appear in tab 45 are taken from  an edition by Thomas C. Barrow which appeared in  Volume 24 of the William and Mary Quarterly 3rd series  1967 pages 108 to 26.  Thank you.  And there are other sources which are  detailed by you in footnote 45?  Yes.  All right.  Now, in tab 45 there are the three  memorandum themselves.  Can you tell his lordship what  the significance was that you attribute to this?  Well, I saw the importance in being that Knox  recommended a confinement of western settlement based  on Mercantilist's arguments and in my report I had  quoted him at length and the quotation and I think the  relevant passage would be found on internal page 114  down to first full paragraph on page 115 ending with  the words "Maritime power of Great Britain."  Now, this --  It starts on page 104?  Starts on page 114.  :  It's about halfway through the last paragraph, I  think it is, my lord.  "Now in order to make"?  "Now in order to make" and then down to roughly the  middle of page 115 "Wealth or Maritime power of Great  Britain."  But —  And without reading that quotation in full, can you  indicate to his lordship the tenor of it?  Well, it says exactly the same thing really as the  next memoranda which is easier to quote from because  it's shorter.  All right.  So —.  Now, these memoranda --  Memorandum.  Excuse me.  -- of Knox --  Yes.  -- you say found their way into the hands of the Earl  of Bute and you have identified him as one of the  king's principal advisors?  That's correct.  And he also -- Knox also transmitted  copies of these memoranda to Shelburne, the president  of the Board of Trade.  Yes.  Probably in May or early June.  All right.  Now, you were going to go on and deal  further with the memoranda? 20449  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.  THE  MR.  MR.  MR.  MR.  MR.  THE  MR.  THE  THE  A   Yes.  There was an additional memorandum drafted by  Ellis -- sorry, Knox, in May or early June and sent to  Egremont.  This is an untitled memorandum preserved in  Shelburne papers at the National Archives of Canada  and I believe it's tab 48.  Q   Yes.  COURT:  So tab —  GOLDIE:  Of Exhibit 1149 — 1159.  COURT:  Tab 4 8 is all one document?  GOLDIE:  It is all one document.  It consists of the three  memoranda as published in the William and Mary  Quarterly.  RUSH:  I am sorry, I am confused by that one.  COURT:  I am too.  RUSH:  I thought the second memoranda was the Knox memoranda  in tab 48.  GOLDIE:  Oh.  RUSH:  Is that — is that correct?  A   There were three memoranda sent to Lord Bute by Knox  in February 1763 and they were all printed together by  Mr. Barrow.  And I quoted from one of those.  GOLDIE:  Q   And —  A  And the fourth memorandum, if you wish --  RUSH:  Oh, I see.  A   -- is the one coming up now which is in manuscript  form found in the National Archives of Canada,  Shelburne papers.  And I would direct attention to --  COURT:  This was sent to whom?  GOLDIE:  To —  A   Lord Shelburne.  COURT:  And the date.  Oh, May-June 1763?  A   Yes.  And it was attempted to answer -- the document  attempted to answer the questions raised in Egremont's  letter of May 5.  So it seems clear that it was  involved in the policy-making process.  But the  passage I would like to refer your lordship to is  found on internal page 32 and essentially the same  thing was said in the earlier memoranda and I will  quote.  On the beginning of the third full paragraph  "the British Colonies."  Yes?  COURT  A  "The British Colonies are to be regarded in no  other Light, but as subservient to the Commerce  of their Mother Country; the Colonists are 20450  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 merely Factors for it the Purpose of Trade and  2 in all Considerations concerning the Colonies,  3 this must always be the leading idea.  4 If it was thought proper to Form a great  5 Empire in America, it might be right to  6 establish inland Settlements, because the  7 Settlers wanting a ready Communication with  8 Europe would immediately turn their Attention  9 to Manufactures and Arts.  10 But if they are to be made subservient to  11 this Kingdom, they must be kept as near as  12 possible to the Ocean that they may be able to  13 export their more bulky Commodities as well as  14 import those of Europe which the inland  15 Settlers cannot do."  16  17 End quote.  18 MR. GOLDIE:  Thank you.  19 THE COURT: Is it convenient to adjourn, Mr. Goldie?  20 MR. GOLDIE:  Yes, thank you, my lord.  21 THE COURT: I have for counsel a memorandum which I will leave  22 with you, leave you with matters scheduled upon which  23 I shall be glad to have reviewed tomorrow or which may  24 be convenient.  25  26 (PROCEEDINGS ADJOURNED UNTIL FRIDAY, OCTOBER 6, 1989  27 AT 10:00 A.M.)  28  29 I hereby certify the foregoing to be  30 a true and accurate transcript of the  31 proceedings herein to the best of my  32 skill and ability.  33  34  35  36 Laara Yardley, Official Reporter,  37 United Reporting Service Ltd.  38  39  40  41  42  43  44  45  46  47

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