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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-11-11] British Columbia. Supreme Court Nov 11, 1989

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 22403  Documents Read in  by Mr. Goldie  1 Vancouver, B.C.  2 November 11, 1989  3  4 (PROCEEDINGS RECONVENED AT 9:30 A.M.)  5  6 THE REGISTRAR:  Order in court.  In the Supreme Court of British  7 Columbia, this 11th day of November, 1989.  Matter of  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lord.  10 THE COURT:  Mr. Goldie.  11 MR. GOLDIE:  My lord, I am about to deal with volume 3 of  12 Selected Proclamations, that is to say, Exhibit  13 1199-3.  14 Under number 22, tab 121, is the Crown Grants  15 Ordinance of 1870 which was enacted on April the 4th  16 of that year.  And as its name implies, was an Act to  17 facilitate the transfer of title in the Crown -- in  18 the Crown colony, that is to say, the united colony at  19 that time.  Paragraph 1 reads:  20  21 In any case in which the Chief Commissioner  22 of Lands and Works and Surveyor General, or  23 other the Officer for the time being charged  24 with the duty of Issuing Crown Grants to  25 persons claiming Grants of Land purchased  26 previous to the passage of this Ordinance,  27 either directly or derivatively from the Crown,  28 shall not be satisfied with the evidence of the  29 validity of the claim of any applicant for such  30 Crown Grant, such Chief Commissioner or Officer  31 aforesaid is hereby authorized and empowered  32 to, and shall if required by the applicant so  33 to do, refer such claim, and all other matters  34 in anywise relating thereto, to the Registrar  35 General of Titles, who shall examine into the  36 Claim, Title, or matter so referred, and  37 proceed therein in the manner hereinafter  38 provided.  39  40 And then that sets out the means by which a title  41 may be examined into and a Crown grant obtained or  42 refused.  43 The definition of "Crown Grant" is found in  44 section 12 on page 3.  It's the last sentence and it  45 states, and I quote:  46  47 The words "Crown Grant" shall mean any 22404  Documents Read in  by Mr. Goldie  1 Instrument in writing under the Public Seal of  2 the Colony conveying Land in fee simple.  3  4 The -- under tab 122 is the Attorney General's  5 report.  6 THE COURT:  That sounds like a very strange definition.  "'Crown  7 Grant' shall mean any Instrument in writing under the  8 Public" -- oh, I suppose "the Public Seal of the  9 colony" would only be affixed if the Crown were the  10 grantor.  11 MR. GOLDIE:  I take it that's what it is to mean.  12 THE COURT:  Right.  Thank you.  13 MR. GOLDIE:  Taken literally, of course, it's a very broad --  14 THE COURT:  Yes.  15 MR. GOLDIE:  — definition.  16 THE COURT:  Might include a transfer between private  17 individuals.  But I suppose it wouldn't bear the  18 public seal.  19 MR. GOLDIE:  No.  2 0 THE COURT:  All right.  21 MR. GOLDIE:  Under the next tab is the — is the Attorney  22 General's report, and I can say by way of introduction  23 that Mr. Crease was much occupied at this time with  24 reconciling the two methods of dealing with title: one  25 in the Mainland colony and the other in Vancouver  26 Island.  And he eventually produced a system which  27 utilized the Torrens system, a modified Torrens  28 system, and which is the foundation of the present  29 land registration system in British Columbia.  30 But in respect of this ordinance, he said on page  31 1 in the -- of the typescript, in the middle of the  32 page:  33  34 It is essentially a temporary and enabling  35 Ordinance, general in its application but  36 retrospective in its operation.  37 It is expressly framed to meet a state of  38 circumstances which - on the Mainland - has  39 arisen from the unsettled provisions and  40 constant changes of the land regulations of  41 various kinds on the first settlement of a new  42 country, where professional aid has not been  43 accessible, and a considerable portion of the  44 early settlers alien.  45 In Vancouver Island - arising from the  4 6 length of time that the Crown Lands have been  47 out of the control of the Crown -- 22405  Documents Read in  by Mr. Goldie  1  2 If I may pause, my lord.  That refers to the period in  3 which the Hudson's Bay Company had effective control  4 of what he refers to as Crown lands.  5 THE COURT:  Yes.  6 MR. GOLDIE:  7  8 -- and the exceptional nature of the mode in  9 which the titles have been derived, partly  10 through successive powers of Attorney from the  11 Hudson's Bay Company not having thereon the  12 Corporate Seal of that company, and partly by  13 instalment papers, conferring equitable  14 interests, which have been dealt with as legal  15 estates, by existing claimants - and in all  16 parts of the Colony the total absence of many  17 of the parties through whom titles have  18 informally descended, and who have probably  19 left the Colony for ever, without leaving a  20 trace of their whereabouts.  21  22 And then he goes on to describe what he is doing.  23 And in just this two-line paragraph in the middle of  24 the page:  25  26 The Ordinance is permissive, not  27 imperative - consequently it does not infringe  28 on the Royal prerogative.  29  30 And then he -- that is followed by the film of  31 the original document.  32 Tab 123 is the transmittal of this ordinance and  33 others to the Secretary of State for the Colonies.  34 The Governor, Mr. Musgrave, states:  35  36 I have the honour to transmit to Your  37 Lordship the usual copies of three Ordinances  38 passed by the legislative Council during the  39 last Session entitled Respectively -  40  41 "An Ordinance to facilitate the issue  42 of Crown grants.  43  4 4 "An Ordinance to amend and  45 consolidate the Laws affecting Crown  46 Lands in British Columbia"  4 7 and 22406  Documents Read in  by Mr. Goldie  1 "An Ordinance to assimilate the Law  2 relating to the Transfer of Real  3 Estate and to provide for the  4 Registration of Titles to Land  5 throughout the Colony of British  6 Columbia."  7  8 2.1 forward these ordinances together  9 as they form a group of measures having  10 relation to each other.  I have taken much  11 interest in their preparation as I was early  12 convinced that a uniform and amended system was  13 necessary in respect of the Land laws of the  14 United Colony, and I strongly recommend them to  15 Your Lordship's favourable consideration.  But  16 it would be superfluous for me to trouble you  17 with lengthened explanations in addition to the  18 exhaustive reports from Mr. Crease the late  19 Attorney General which are annexed.  20  21 Then under tab 124, is the Emigration Board's  22 letter of the 27th of August, 1870, reporting on these  23 items to the colonial office.  On the first page of  24 the typescript, paragraph number two:  25  26 These Ordinances are accompanied by reports  27 from the Colonial Attorney General and other  2 8                     voluminous documents.  They form as the  29 Attorney General states in his report of 11th  30 May, a complete code for "the clearing,  31 acquisition and registration of title to real  32 estate" in the Colony - and have become  33 necessary in consequence of the variety,  34 irregularity and confusedness of the modes in  35 which claims to land have heretofore been  36 created on Vancouver Island and on the  37 mainland.  38  39 And he notes that there is a provision for --  40 there is an analysis which follows, to some extent,  41 but it is, as we will see, much more summary than the  42 Attorney General's report.  43 Then on the last page, Mr. Murdoch -- last page of  44 the transcript -- well, the typescript I should say,  45 last page of his letter, it's identified by the  46 numbers 253d in the upper right-hand corner.  The last  47 sentence of Mr. Murdoch's letter: 22407  Documents Read in  by Mr. Goldie  1  2 The Ordinance is passed with a suspending  3 Clause, and it will therefore be necessary, if  4 Lord Kimberley approves it, that it should  5 receive Her Majesty's special confirmation in  6 the usual form.  7  8 Then the minute paper of the colonial office  9 starts with the statement:  10  11 I think these three Ordinances may be  12 Sanctioned.  The report is of Sir C. Murdoch  13 shews very clearly & briefly the general effect  14 of them.  The Attorney General disposes  15 satisfactorily of the objections raised by the  16 Banks to sec. 33 of No. 17.  17  18 And so on.  And then follows under that tab, a  19 photograph of the original documents.  20 Under tab 125 is Lord Kimberley's despatch to  21 Governor Musgrave in which he states in the middle of  22 the page:  23  24 I have now to convey to you Her Majesty's  25 gracious confirmation and Allowance of these  26 Ordinances.  27  28 Then we move to this number 23, the Game Ordinance  29 of 1870.  The ordinance follows, and then under tab  30 127 is the Attorney General's explanation for it.  31 Midway down the page, he is talking of the previous  32 ordinance and he says, and I quote:  33  34 That Law was too general in its  35 application; extended too far beyond the Towns  36 where the chief market lay for this illicit  37 traffic and contrary to expectation, affected  38 Settlers in remote Districts, who when other  39 meat was not procurable, depended in a great  40 degree on Venison and Game for subsistence  41 during several months in the year.  42 The definition of Game under it did not  43 support a conviction.  44 The penalty for infraction of the Law was  45 not at all proportioned to the trouble of  46 laying information, arraying the evidence, and  47 procuring a conviction. 2240?  Documents Read in  by Mr. Goldie  1 Nor was sufficient inducement held out to  2 lead parties to give information of the  3 infraction of the Law.  4 Great and increasing destruction of Game  5 had still been going on in the close Season  6 throughout the country through the  7 instrumentality of white man, at all times  8 thoughtlessly ready to purchase game without  9 regard to breeding time, and in certain  10 localities threatens the almost entire  11 destruction of an important portion of the Red  12 Man's food.  13 The restrictions placed on the Aborigines,  14 by the former Statute, were found to work  15 injuriously on the very class they were  16 intended to protect and a new mischief had  17 arisen from the wholesale destruction of  18 insectivorous birds and the consequent increase  19 of caterpillars and other crop-destroying  20 insects.  21  22 And then he goes on to say:  23  24 There is always great tenderness in the  25 Legislature, Executive and Courts in dealing  26 with questions affecting the natives of the  27 Country, and some of the same spirit is  28 observable in the Ordinance.  29 The only fear is that the exemption of  30 Indians from the operation of the Act will  31 provide the White Man with a ready means of  32 evading the most beneficial of its provisions  33 through the agency of the very persons whose  34 interests are most deeply concerned in its  35 enforcement.  36  37 And tab 128 is the transmittal letter to the  38 colonial office.  39 At tab 129 is the Queen's confirmation and  40 allowance of the ordinance.  41 Under tab number 24 we come to statute number 24,  42 and it is under tab 130.  And the preamble indicates  43 the -- that it is the greatest and the last of the  44 three ordinances that the Attorney General had  45 laboured over, and the preamble reads, and I quote:  46  47 Whereas it is expedient to establish a 22409  Documents Read in  by Mr. Goldie  1 Registry of Titles to Real Estate throughout  2 the Colony of British Columbia, and to  3 assimilate the Law relating to the Transfer  4 thereof, and for that purpose to repeal certain  5 Acts and Ordinances hereinafter mentioned.  6  7 And that sets up a Land Registry.  The act itself is  8 not overly long, but it contains several significant  9 provisions.  10 Section XXXV -- I am sorry my lord, I'm referring  11 first to section XIX on page 4 of the statute, which  12 provides that:  13  14 Every person claiming to be the legal owner in  15 fee simple of Real Estate may apply to the  16 Registrar for Registration thereof, in the form  17 marked A. in the First Schedule hereunto  18 annexed, and the Registrar shall, upon being  19 satisfied after the examination of the Title  20 Deeds produced, that a "prima facie" Title has  21 been established by the applicant, register the  22 Title of such applicant in a Book to be called  23 the "Register of Absolute Fees," in the form  24 marked B. in the said First Schedule.  25  2 6 And so on.  27 And then there is a provision for Certificate of  28 Title in Section XXXV which contains in the last  29 sentence:  30  31 Every Certificate of Title shall be received as  32 prima facie evidence in all Courts of Justice  33 in the Colony, of the particulars therein set  34 forth.  35  36 THE COURT:  Well, there is only one office in the first  37 instance?  38 MR. GOLDIE:  I think that was so in the first instance, my lord.  39 THE COURT:  Looks like it for Section I.  40 MR. GOLDIE:  Yes.  41 Section XLVII, under the heading "Indefeasible  42 Title":  43  44 The owner in fee of any land, the title to  45 which shall have been registered for the space  46 of seven years, may apply to the Registrar for  47 a Certificate of Indefeasible Title; but he 22410  Documents Read in  by Mr. Goldie  1 shall first...  2  3 And then there is some conditions.  4 And then XLIX, just the first sentence:  5  6 The Certificate of Indefeasible Title shall  7 be conclusive evidence in all Courts of Justice  8 that the person therein named is the absolute  9 owner of an Indefeasible Fee Simple in the Real  10 Estate therein mentioned against the whole  11 world (the Crown only excepted).  12  13 There are some definitions in Section LXXXVII  14 and the second to last page, and then the forms which  15 follow.  16 Then under tab 131 is the very extensive Attorney  17 General's report which runs to some 36 typed pages,  18 and he proceeds to discuss the history of the matter.  19 And on page 2 he says, in the middle of the page:  20  21 Since 1858 —  22  23 And he is speaking of the Mainland colony.  24  25 -- numerous Proclamations have been passed from  26 time to time, arranging (sometimes very  27 imperfectly) for the acquisition and Sale of  28 Land, - and at various prices - on the  29 Mainland - each new local-Land Law containing a  30 saving of existing rights which of course, have  31 subsequently to be dealt with by the Law under  32 which they were created.  33 So that under this system, if it could be  34 called one, a great variety of interests in  35 Real Estate, dealt with differently, and oft  36 times conflicting, arose; and could not be  37 settled by any ordinary means.  38  39 And then on page 4, after discussing Vancouver  40 Island, he says in the second paragraph from the top:  41 "The Company," that is the Hudson's Bay Company,  42 "claimed some lands --"  43 THE COURT:  Sorry, where is that?  44 MR. GOLDIE:  It's page 4.  45 THE COURT:  Four.  Thank you.  Yes.  46 MR. GOLDIE:  That's at the top of the page.  4 7    THE COURT:  Yes. 22411  Documents Read in  by Mr. Goldie  1 MR. GOLDIE:  Beginning with the paragraph beginning with the  2 words, "The Company."  3 THE COURT:  Yes.  4 MR. GOLDIE:  And that is, of course, the Hudson's Bay Company.  5  6 -- claimed some Lands - in fact all The Town  7 Site of Victoria, and its Suburbs - over One  8 thousand two hundred and Twelve acres - as  9 their fee by a possessory Title acquired in  10 1835, anterior to Vancouver Island being  11 claimed as British Territory.  12 Hundreds of Town Lots in Victoria are even  13 now held by Conveyances from the Company not  14 under the Public seal of that great  15 Corporation.  16  17 And so on.  18 And he then begins to outline what he has done,  19 beginning at page 6, where he says:  20  21 The first step however towards a General  22 and Uniform cure had reference to the Past.  It  23 was imperative to devise some cheap and speedy  24 method, adapted to the varying requirements of  25 different Sections of the Colony, for Clearing  26 up the entanglements of past Titles without  27 injury to latent claims or existing rights.  28  29 And then he proceeds to discuss the means by which  30 this was to be done, and the differences between the  31 two colonies is again referred to at page 8.  I am not  32 going to read that.  33 Then under tab 132 is the transmittal letter, the  34 same one that we've seen earlier, but in here, because  35 it covers the -- it also relates to the ordinance  36 known as the Land Registry Ordinance of 1870.  37 And then under tab 133 is objections taken by the  38 banks, which are not that important, but they were  39 forwarded -- or forwarded to London.  40 Under tab 134 is the report of the Emigration  41 Board and that's the same document that we saw  42 earlier.  43 And under tab 135 is Lord Kimberley's despatch of  44 the 5th of September of 1870, and conveying Her  45 Majesty's confirmation and allowance of these  46 ordinances.  47 My lord, that completes the reading of those 22412  Documents Read in  by Mr. Goldie  1 three volumes.  I next wish to refer to two volumes  2 entitled "Miscellaneous Statutory Instruments".  3 THE COURT:  All right.  This will be exhibit —  4 MR. GOLDIE:  1200.  5 THE COURT:  — 1200 I believe?  6 MR. GOLDIE:  Yes.  Could this be —  7 THE COURT:  Volumes 1 and 2?  8 MR. GOLDIE:  One and two.  My lord, this is a connection, as its  9 name implies, of miscellaneous statutory instruments  10 which have been plead or particularized and are not  11 otherwise found in the provincial documents.  12 THE COURT:  Sorry, what do you mean by that?  13 MR. GOLDIE:  Well, in our -- we either plead these or they have  14 been referred to in the particulars provided pursuant  15 to demand, and they are -- the text is not otherwise  16 found in any provincial document.  17 THE COURT:  I see.  18 MR. GOLDIE:  So each document is an individual document, they  19 are not related, and they run from tabs 1 to 124, I  20 believe.  And may I suggest, my lord, that instead of  21 my identifying each of them at this time, that the  22 index, which is at the front of the document, appear  23 in the transcript for the purposes of identifying the  24 exhibits, so that it would be Exhibit 1200-1, then tab  25 1.  2 6 THE COURT:  Tabs 1 to?  27 MR. GOLDIE:  124.  28 THE COURT:  I'm sorry.  I am just wondering if your suggestion  29 is -- well, I see.  The index for volume 1 includes  30 the index for volume 2 as well, does it?  31 MR. GOLDIE:  Yes.  It's a complete index.  32 THE COURT:  All right.  Tabs 1 to 124 then.  33 MR. GOLDIE:  Yes.  34 THE COURT:  All right.  So it does need to show it as volume 1  35 or volume 2.  36 MR. GOLDIE:  Well, we can particularize it to this extent, my  37 lord.  38 THE COURT:  I was thinking that -- well, no, if the index covers  39 the whole 124 tabs that it seems to --  40 MR. GOLDIE:  Yes.  41 THE COURT:  — then that's sufficient.  It can be called 1200-1,  42 tabs 1 to 124, and then the other volume can just be  43 called 1200-2.  44 (EXHIBIT 1200-1 - Miscellaneaous Statutory Instruments  45 Volume 1, Tabs 1-45)  46  47 (EXHIBIT 1200-2 - Miscellaneaous Statutory Instruments 22413  Documents Read in  by Mr. Goldie  1 Volume 2, Tabs 46-124)  2 MR. GOLDIE:  Yes.  And if the index could be reproduced in the  3 transcript that would provide a complete  4 identification, rather than the transcript containing  5 each document.  6 THE COURT:  I think that's all right, but I don't really see any  7 need.  Only if there is a reason why.  I was thinking  8 that perhaps Madam Reporter wouldn't have to type it  9 again, but for computer purposes it has to be typed  10 altogether.  Does it have to show in the transcript?  11 MR. GOLDIE:  Well, my thought was that the reporter could simply  12 photocopy the index.  13 THE COURT:  It won't show up in the —  14 MR. GOLDIE:  Reproduce it in the transcript.  15 THE COURT:  She'll have to type it all over again.  16 MR. GOLDIE:  No.  If it's photocopied, as I understand it --  17 THE COURT:  But to get into yours and my and I don't know who  18 else's computer memory, it won't show if it's not  19 typed in whatever, word perfect for me, I think  20 everybody is using word perfect.  21 MR. GOLDIE:  Well, I am content to leave it to those who will do  22 that which has to be done.  If -- because I am not  23 going to make reference by what I have to say to each  24 and every one of these.  25 THE COURT:  I think it's sufficient that the transcript show  26 that there has been admitted into evidence the 124  27 tabs of documents which are included in Exhibit 1200  28 volumes 1 and 2.  And if one then wants to go to  29 greater detail, he need only -- he need only go to  30 those exhibits and look at the index.  31 MR. GOLDIE:  I can categorize these, and that will be of  32 assistance, if that's sufficient, my lord.  33 THE COURT:  I am not sure it's necessary, but I don't know  34 enough about it to even guess at whether that would be  35 a useful thing to do.  I'm leaving that to you, Mr.  36 Goldie.  37 MR. GOLDIE:  All right, my lord.  38 Tabs 1 to 8 of volume 1 of Exhibit 1200 consist of  39 the Imperial Order in Council joining the Stikine  40 territory to the Mainland colony; the Imperial Order  41 in Council of 1863, which provides for the Legislative  42 Council of the Mainland colony.  Your lordship will  43 have in mind that Governor Douglas was his own  44 Legislature up until that point.  45 The Imperial act of -- the -- under tab 3 is the  46 Imperial Act of Defining the Boundaries of the Colony  47 as of 1863, and continuing as the Act to provide for 22414  Documents Read in  by Mr. Goldie  1 its government.  2 Under tab 4 is the 1866 Act providing for the  3 union of Vancouver Island and British Columbia.  4 Under tab 5 is the union proclamation.  5 Under tab 6 is the English Law Ordinance which I  6 might simply refer to.  It is dated March the 6th,  7 1867, and its preamble states:  8  9 Whereas it is expedient to assimilate the  10 Law establishing the date of the application of  11 English Law to all parts of the Colony of  12 British Columbia;  13 I.  "The Proclamation having the force of  14 Law to declare that English Law is in force in  15 British Columbia," on the 19th day of November,  16 1858, is hereby repealed.  17  18 Saving all the rights.  19  20 II.  "From and after the passing of this  21 Ordinance the Civil and Criminal Laws of  22 England as the same existed on the 19th day of  23 November, 1858, and so far as the same are not  24 from local circumstances inapplicable, are and  25 shall be in force in all parts of the Colony of  26 British Columbia.  27  28 And that extends to both British Columbia and  29 Vancouver Island.  Again, saving all existing rights.  30 Tab 7, I have put in here the Constitution Act of  31 1867, or as it was then known, The British North  32 America Act of 1867, tabs 9, 10, 11, 12, 13.  33 THE COURT:  You left out eight.  34 MR. GOLDIE:  Beg your pardon, my lord?  35 THE COURT:  You left out eight.  36 MR. GOLDIE:  Oh yes.  Eight is, of course, an important one.  It  37 is the Terms of Union, the Order in Council and -- to  38 which is scheduled the address of the senate of Canada  39 which sets out the terms of union.  And of course the  40 relevant ones in that we will come to later.  41 Then tabs 9 to 15 are the commissions and  42 instructions to Douglas of 1858, to Seymour of 1864.  43 Additional instructions to Seymour of 1867, the  44 commission appointing Mr. Musgrave of 1869, and his  45 instructions of 1869.  46 Tab 16 is the Railway Belt Re-Transfer Agreement  47 Act of 1930. 22415  Documents Read in  by Mr. Goldie  1 At tab 17 is the British Columbia Order in Council  2 of September 23rd, 1930, which relates to the transfer  3 of lands within the railway belt in the Peace River  4 Block.  And attached to it is the memorandum of  5 agreement known as the Scott-Ditchburn Agreement or  6 the Scott-Cathcart Agreement, but it is a memorandum  7 of agreement as arrived at between Dr. Scott and Mr.  8 Ditchburn on behalf of the Dominion government and Mr.  9 Cathcart and Mr. Bass on behalf of the Provincial  10 Government.  And they settled on the form of  11 conveyance to be utilized by the province to the  12 dominion of Indian reserves outside the railway belt  13 in the Peace River Block.  14 Now, my lord, the balance of -- that is to say  15 from tabs 18 to 124 consist of other colonial  16 ordinances and acts.  Well, I should enlarge on that.  17 Colonial ordinances, acts, regulations and  18 instructions, and without going to any of them, they  19 will, of course, be a -- referred to as being the  20 variety and extent of the legislative -- of the  21 exercise of legislative powers within the colonies,  22 Mainland primarily, and after, of course, 1866, the  23 united colony.  24 My lord, that's all I propose saying with respect  25 to that.  2 6 THE COURT:  All right.  Thank you.  27 MR. GOLDIE:  The next reference is to documents collected under  28 the heading of "Terms of Union" and section 109.  29 THE COURT:  What does section 109 say again?  You had it a  30 minute ago.  31 MR. GOLDIE:  Yes, I did.  32 THE COURT:  Volume 1.  It provides for the acquisition to Cana-  33 da, does it?  It would be in tab 7 of the other book.  34 MR. GOLDIE:  Tab 7 of the document I just finished looking at.  35 It has to do with the public lands.  36 THE COURT:  I'm sorry, yes.  37 MR. GOLDIE:  Yes.  38  39 All Lands, Mines, Minerals and Royalties  40 belonging to the several Provinces of  41 Canada... shall belong to the several  42 Provinces ... in which the some are situate or  43 arise, subject to any Trusts existing in  44 respect thereof.  45  4 6 THE COURT:  Yes.  47 MR. GOLDIE:  In the case of British Columbia, it entered 22416  Documents Read in  by Mr. Goldie  1 confederation on the same basis as the old provinces  2 and thus was the owner of its public lands.  Many of  3 the documents in the next volumes, my lord, deal with  4 the parallel negotiations which were going on for the  5 acquisition of Rupert's Land and the Northwest  6 Territories by Canada from the Hudson's Bay Company.  7 And in that -- when what is now Manitoba and the  8 prairie provinces joined confederation, the public  9 lands became Dominion lands and were not transferred  10 to the provinces until sometime in this century.  11 So I now tender volumes 1 and 2 of documents --  12 of binders entitled "Terms of Union" section 109d and  13 the B.N.A. Act, Crown lands documents; volume 1  14 containing tabs 1 to 40, and volume 2 containing tabs  15 41 to 83.  And again, there is a comprehensive index  16 in the front of each volume, and my suggestion, my  17 lord, is that these be treated in the same way as the  18 previous exhibit.  Volume 1 being Exhibit 1201-1.  19 THE COURT:  Total of 83 tabs?  20 MR. GOLDIE:  A total of 83 tabs, yes.  21 THE COURT:  Yes.  Well those — those books will be Exhibit 1201  22 volumes 1 and 2, tabs 1 to 4 0 in volume 1 and tabs 41  2 3 to 8 3 in volume 2.  24 (EXHIBIT 1201-1 - Terms of Union Sec. 109, B.N.A. Act  25 Crown Lands Documents Vol. 1, Tabs 1-40)  26 (EXHIBIT 1201-2 - Terms of Union Sec. 109, B.N.A. Act  27 Crown Lands Documents Vol. 2, Tabs 41-83)  28 MR. GOLDIE:  Yes.  Thank you, my lord.  29 Some of these documents have been entered as  30 exhibits, or parts of them have been entered as  31 exhibits before, either in cross-examination of  32 witnesses or filed as part of a case in chief.  But  33 they are gathered up here because they have a common  34 thread in this sense, that they provide an indication  35 of some of the factual circumstances prevailing at the  36 time of the negotiations which were entered into  37 between British Columbia and Canada, and which  38 culminated in British Columbia joining Canada in 1871.  39 Those negotiations and preparation for negotiations  40 which preceded the date of union by a couple of years,  41 were carried on almost in parallel with the  42 negotiations which resulted in the transfer of the  43 Hudson's Bay interest in Rupert's Land to Canada, and  44 the simultaneous creation of the province of Manitoba.  45 The common link is, of course, the people in the  46 colonial office, and on the Dominion side, Sir Georges  47 Cartier, who was an instrumental -- or principal 22417  Documents Read in  by Mr. Goldie  1  2  3  4  5  THE  COURT:  6  MR.  GOLDIE  7  THE  COURT:  8  MR.  GOLDIE  9  THE  COURT:  10  MR.  GOLDIE  11  THE  COURT:  12  13  14  MR.  GOLDIE  15  THE  COURT:  16  17  18  MR.  GOLDIE  19  20  21  ]  22  1  23  24  25  1  26  27  28  29  30  THE  COURT:  31  MR.  GOLDIE  32  THE  COURT:  33  34  MR.  GOLDIE  35  THE  COURT:  36  MR.  GOLDIE  37  38  THE  COURT:  39  MR.  GOLDIE  40  41  THE  COURT:  42  MR.  GOLDIE  43  44  45  46  47  THE  COURT:  figure in the negotiations for the acquisition of  Rupert's Land, and was the leading figure on the  Dominion side in the negotiations with respect to  British Columbia.  The collection starts off with --  What was Cartier's first name?  :  Georges.  George with an S?  :  George with an S.  Yes.  Thank you.  :  The first document.  Just one other thing.  Were any of the lands  acquired by -- as Dominion lands in the Rupert's Land  scheme of things, within what is now British Columbia?  :  No.  So they were not -- you are not talking there about  any lands in British Columbia, we are talking about  acquisition of Rupert's Land?  :  Rupert's Land, which was substantially defined as  all the lands covered by the drainage area of Hudson's  Bay, was pretty well bounded on the west by the Rocky  Mountains.  The boundry of the colony of British  Columbia which had been removed from the Hudson's Bay  jurisdiction, that -- those boundaries had been  established before Rupert's Land was transferred to  Canada.  So there was -- there probably was a portion  which -- before British Columbia, the Mainland colony  was created, which might have fallen within the area  of Rupert's Land but that had been carved out prior to  the —  And when was that?  :  1858, when the colony was created.  But that time the boundaries seemed to be the  Skeena?  :  The boundary?  Yes.  :  Yes.  And we'll see some part of that.  It was  Simpson's River, known as.  Yes.  :  And above that would be an area that still fell  within the trading area of the Hudson's Bay Company.  Yes.  :  The Hudson's Bay Company had greater rights in  Rupert's Land than it did in Caledonia or the Oregon  territory, where it had only an exclusive trading  right.  But by 1862, the Stikine territory north of  Simpson's River had been adjoined to British Columbia.  Would it help to look at the Stikine territory? 22418  Documents Read in  by Mr. Goldie  1  MR.  GOLDIE  2  THE  COURT:  3  MR.  GOLDIE  4  THE  COURT:  5  MR.  GOLDIE  6  7  8  9  10  1  11  THE  COURT:  12  MR.  GOLDIE  13  14  15  16  17  18  19  20  21  22  23  THE  COURT:  24  MR.  GOLDIE  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  THE  COURT:  40  MR.  GOLDIE  41  42  THE  COURT:  43  44  MR.  GOLDIE  45  THE  COURT:  46  47  MR.  FREY:  :  Yes.  I was just going to search for that.  That's in volume --  :  It's in Exhibit 1200, volume 1, under tab 1.  What does it say?  :  Well, I have read this, and if I may say so, the  first paragraph of the preamble -- it may even be  better to say almost the entire preamble -- leads one  through a degree of intricasies supporting the  authority of the Queen and council to add this, that I  don't think is really necessary.  All right.  :  But if your lordship will look at the second page,  the last sentence of the first paragraph states:  And whereas it is necessary to provide for the  government of certain territories adjacent to  our colony of British Columbia, but not being  within the jurisdiction of the Legislative  authority of any of Her Majesty's possessions  abroad, hereinafter called the Stickeen  territories.  Yes.  :  And then the next paragraph defines:  ...that the said Stickeen territories shall  comprise so much of the dominions of Her  Majesty as are bounded to the west and  south-west by the frontier of Russian America,  to the south and south-east by the boundary of  British Columbia, to the east by the 125th  meridian of west longitude, and to the north by  the 62nd parallel north latitude.  And it is  further ordered that the Governor for the time  being of British Columbia shall be the  Administrator of the Government of the said  territories.  The 125th is the present border with Alberta?  :  Yes.  Until it strikes the Rocky Mountains and then  it follows the Rockies.  Yes.  And the 62nd is this north boundary of the  province at the present time, you think?  :  That's my -- I would like to check that, my lord.  Yes, all right.  I don't remember the 62nd parallel  before.  I believe it's the 60th at present, my lord. 22419  Documents Read in  by Mr. Goldie  1  THE  COURT:  2  3  MR.  FREY:  4  THE  COURT:  5  1  6  MR.  GOLDIE  7  THE  COURT:  8  MR.  GOLDIE  9  10  11  12  THE  COURT:  13  MR.  GOLDIE  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  THE  COURT:  29  MR.  GOLDIE  30  THE  COURT:  31  MR.  GOLDIE  32  THE  COURT:  33  MR.  GOLDIE  34  35  1  36  1  37  38  39  40  41  42  43  44  45  46  47  Sixtieth at present.  So this would be greater than  the present Province of British Columbia.  That's my understanding.  Yes, all right.  So at some time when the Yukon was  defined, it was defined as the 60th, I suppose.  :  I think that was the sequence.  Yes.  All right.  :  And then it goes on to provide for the powers of  the said administrator.  The law in force should be  "the law of England as it existed on the 1st day of  January, 1862," this is on page 191.  Yes.  :    Last paragraph:  And it is ordered that the supreme court of  civil justice in British Columbia shall and may  take cognizance of all or any suits.  And so on.  And then the second to last paragraph:  It is hereby ordered that all powers herein  conferred on the Governor of British Columbia  shall be exercisable by him so long as he shall  be in the said territories, or in the colony of  British Columbia.  Where is that?  :  That's page 193, the second to last paragraph.  Oh, yes.  :  At the top of the page.  Top of the page, yes.  All right, thank you.  :  The first document under tab 1 in Exhibit 1201,  volume 1, is a typescript of a letter from a Mr.  Corbett who gave evidence in the -- before the Select  Committee inquiring into the affairs of the Hudson's  Bay Company.  That -- my lord, that report was filed  and is Exhibit 1183.  Mr. Corbett was one of the  witnesses.  After he had given evidence he wrote to  the Secretary of State for the colonies who at that  time was Mr. Labouchere, and as he states in the first  paragraph, and I quote:  As from pressing duties I was unable to comply  with a request of one of the Hon. Members of  the House of Commons to be examined a third  time before the Select Committee upon the 22420  Documents Read in  by Mr. Goldie  1 Hudson Bay Company prior to my embarkation for  2 this land once more.  3  4 And he is writing from the Red River settlement on the  5 4th of February, 1858, and he asks that a transcript  6 of his evidence be sent to him, and he gives some  7 further comments on the government of the Red River  8 colony while that is within the jurisdiction of the  9 Hudson Bay Company.  And at page 259, the paragraph in  10 the mid part of the page beginning with the words, "If  11 the Hudson Bay Company."  12 THE COURT:  Yes.  13 MR. GOLDIE:  14  15 -- claim a right to the soil of the whole  16 Country & if they have that [right] why did  17 they allow another man, Lord Selkirk to [come]  18 in & buy some of these same lands of the  19 Indians & then the Comp[any] to buy the lands  20 of Lord Selkirk again?  Why did the Company  21 allow another person to buy & to sell that  22 which they profess has ever blonged [sic] to  23 the[m]selves?  24 This question has reference to the lands  25 which Lord Selkirk is said to have bought of  26 the Saulteaux & Cree Chiefs & warriors for two  27 miles in breadth along the Red & Assiniboi[ne]  28 Rivers on either side of the banks for about  29 [50] miles on each; but a difficulty arises  30 here.  It seems that the Saulteaux have no  31 right to this part of the country.  This  32 Country [belongs] to the Cree Nation.  And the  33 Crees are [asserting] that they have never sold  34 any part of their territory & the Cree Chief, I  35 am informed, [came] in last spring & protested  36 against the Company's selling any lands in this  37 [neigh]bourhood on the grounds that he had not  38 sold it & that he had not been paid for it.  I  39 do not profess to be a judge in this  40 [question].  Indeed I am obliged to state in  41 answering inquiries, that such questions are  42 beyond [my] ability.  It cannot at the same  43 time be concealed that the more the land  44 question is being looking [sic] into, the more  45 important does it appear that every arrangement  46 with respect to lands should be well defined.  47 It seems a marvel to some persons, that the 22421  Documents Read in  by Mr. Goldie  1 entire Continent of Rupert's Land should have  2 been under the British Crown so long, & that  3 only two out of the fifty four Chiefs of the  4 Indian Nations, should ever have been entered  5 into treaty with as to their lands.  The  6 American Government does this on the other side  7 of the border & I believe Her Majesty's  8 Government, also elsewhere.  The Indians in the  9 neighbourhood where the Canadian Surveying  10 expedition are working are now coming forward &  11 demanding who has a right to survey or open a  12 road before they have sold their lands or  13 consented.  And some trouble may arise.  It is  14 thought the best way would be for the British  15 or Canadian Government to pass a law forthwith  16 that the Indians be negotiated with for their  17 lands as fast as required, leaving to them  18 reserves for Settlement & arranging for some  19 portion of their payments to them to be paid to  20 the Protestant Missions of the localities for  21 the sound religious education of the poor  22 Children.  23  24 Mr. Corbett was himself, of course, a clergyman.  25 And then the minutes of the colonial office are found,  26 beginning with the page of the colonial office  27 documents at page -- numbered in the upper right-hand  28 corner 261:  The first minute is addressed to Mr.  29 Blackwood:  30  31 I cannot find any record of this gentleman's  32 previous letters in the division.  33  34 Mr. Blackwood's minute to Mr. Merivale:  35  36 Lord Stanley will remember this writer as one  37 of the witnesses before the Hudson's [Bay]  38 Select [Committee] -  39 Assuming that it will be proper to  40 [acknowledge] the [receipt] of his letters,  41 with thanks, will his Lordship wish us to send  42 him a copy of the Evidence, as requested?  43  44 And then Mr. Merivale's minute begins with the orders,  45 "This letter alludes."  And he says or he writes:  46  47 This letter alludes to one matter which is 22422  Documents Read in  by Mr. Goldie  1 new to me - nor have I heard it referred to in  2 what I have read of the Evidence before the  3 H.B. Committee - I mean the claims of Indian  4 tribes over portions of Lord Selkirk's land &  5 generally over the territories comprised in the  6 Charter - The Americans have always taken care  7 to extinguish such rights however vague - We  8 have never adopted any very uniform system  9 about them.  I suppose the [Hudson's Bay  10 Company] have never purchased from such  11 claimants any of their land.  And I fear (idle  12 as such claims really are, when applied to vast  13 regions of which only the smallest portion can  14 ever be used for permanent settlement) that the  15 pending discussions are not unlikely to raise  16 up a crop of them.  17  18 And then Lord Stanley's note:  19  20 I think he ought to have copy of the evidence  21 as he asks it, and was a witness.  22  23 And then the next document under tab 2 is again a  24 letter to the Secretary of State, this time -- at that  25 time being the Duke of Newcastle, the date being the  26 3rd of December 1859, from one William Kennedy.  And  27 he asks in the first paragraph:  28  29 ...how far is it the intention of Her Majesty's  30 Government in the event of the establishment of  31 a Crown Colony at the Red River to recognize  32 the proprietary rights of the Indians in the  33 soil?  34  35 And the minutes are found on the next page, Mr.  36 Merivale's minute addressed to Mr. Fortescue begins  37 with these words:  38  39 This has reference to an interview - But  40 the question asked is one of considerable  41 importance, & I will venture to add, on which  42 it is essential to be extremely cautious in  43 answering Mr. Kennedy, as any such answer will  44 no doubt be made use of & may very easily be  45 misapprehended.  46 In the old days no one ever thought of  47 recognizing "territorial rights" in Indians. 22423  Documents Read in  by Mr. Goldie  1 Charles the Second simply made over to the Bay  2 Company the freehold of the soil in their  3 Charter territory.  According therefore to  4 English real property notions, the Indians had  5 no "territorial rights" within that territory  6 at all.  7  8 And then he goes on to refer to Lord Selkirk's  9 account, and then the last paragraph:  10  11 I think it might be pretty safely assumed,  12 that no right of property would be admitted by  13 the Crown as existing in mere nomadic hunting  14 tribes over the wild land adjacent to the Red  15 River Settlement.  But that agricultural Indian  16 settlements (if any such exist) would be  17 respected, and that hunting ground actually so  18 used by the Indians would either be reserved to  19 them or else compensation made.  20  21 And so on.  And then the next minute is that of  22 the Earl of Carnarvon who at that time was, I believe,  23 the parlimentary undersecretary, the Duke of Newcastle  24 being the Secretary of State at the time.  25 And then there is the draft of the letter on the  26 next typescript page which finally reads as follows:  27 When I say "finally reads", I mean the final paragraph  28 of which reads, and I quote:  29  30 I am desired to inform you that whenever  31 [Her Majesty's] Government comes to a  32 conclusive arrangement with the Hudson's Bay  33 Company, every fair consideration will be shewn  34 to the Native Races, but that it is impossible  35 at the present moment to give any answer to so  36 general a question as that which you have put  37 in your letter without incurring the danger of  38 giving rise to misunderstanding, not merely on  39 the part of Indians, but of others who may be  40 intending to settle at the Red River.  41  42 And then tab 3 is the Railway Act of 1868.  I am  43 not going to go into the details of that, because one  44 of the facts which existed at the time of British  45 Columbia joining the Union was, of course, the  46 requirement -- or one of the terms was the  47 construction of the Canadian Pacific Railway.  Section 22424  Documents Read in  by Mr. Goldie  1 37 of the Railway Act which, of course, at this time,  2 Canada consisted of Ontario, Quebec, Nova Scotia and  3 New Brunswick.  Section 37 provided:  4  5 If the Railway passes through any land  6 belonging to or in possession of any Tribe of  7 Indians in Canada, or if any act occasioning  8 damage to their lands be done under the  9 authority of this Act or the Special Act,  10 compensation shall be made to them therefor, in  11 the same manner as is provided with respect to  12 the lands or rights of other individuals.  13  14 Tab 4 is the despatch of Governor Seymour to the  15 Duke of Buckingham on the 30th of November, 1868.  And  16 this is his despatch which precedes -- I shouldn't say  17 precedes -- the negotiations relating to union with  18 Canada, but which raises the question with respect to  19 it.  And on page 3 of the minutes of the colonial  20 office --  21 THE COURT:  This is before union though, isn't it?  22 MR. GOLDIE:  Oh yes -- no, it's after union of the two colonies.  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  But before, of course, confederation with Canada.  25 THE COURT:  Yes, all right.  Page 3?  26 MR. GOLDIE:  Page 2 begins the minutes of the Colonial Office,  27 the first one being addressed to Sir Frederick Rogers,  2 8 and the minute reads:  29  30 Governor Seymour sends home the result of a  31 "Convention of Delegates" held at Yale in  32 September called together by the Confederation  33 League to accelerate the admission of British  34 Columbia into the Dominion of Canada.  35  36 And he says there are four topics considered and then  37 he deals with each of those topics.  38 And then on the next page there is a further  39 minute, and I take it Mr. Rogers -- who it will be  40 seen, was active in the negotiations that led to the  41 acquisition by Canada of Rupert's Land -- but at this  42 point of course, we are dealing about -- dealing with  43 the early suggestion that British Columbia should join  44 Canada.  And he says under Roman II:  45  46 II.  As to representative institutions &  47 responsible government the objections are 22425  Documents Read in  by Mr. Goldie  1 1.  that formally representative institutions  2 did not answer very well in Vancouver  3 Island.  4 2.  that they will almost certainly hasten the  5 course of Anglo-Saxon violence ending in  6 destruction of aborigines.  For the purpose  7 of keeping the peace in this respect the  8 American character of the population  9 renders the maintenance of an Executive  10 responsible for an external authority  11 peculiarly necessary.  12  13 And then he concludes after paragraph numbered  14 seven with these words:  15  16 In short I submit, that this Colony is not  17 in a state to be relieved from a certain  18 steadying external pressure --& I do not like  19 to relieve it from the pressure of Downing  20 Street till we can substitute the pressure of  21 Ottawa.  At any rate not till it has recovered  22 its balance after the shock of amalgamation --  23 which has been considerable.  24  25 I think the amalgamation he is referring to is the  26 union of the two colonies.  27 The despatch of Seymour to the Duke of Buckingham  28 of the 21st of December, 1868, which was forwarded to  29 the colonial office, the Governor's address at the  30 opening of the legislative session, and there are a  31 variety of minutes.  But the one I am referring to is  32 on page 2, the second complete paragraph -- well,  33 start with the first complete paragraph, he says:  34  35 With regard to the proposal to give  36 formally as well as virtually representative  37 institutions, (the Legislative Council is at  38 present entirely nominal but the Governor  39 always in fact names a certain number of  40 persons who are practically elected in  41 different districts of the Colony).  I would  42 point out to the Governor, that it is more than  43 doubtful both whether the Legislative Council  44 of British Columbia are legally competent to  45 alter their own constitution & whether they are  46 a fitting body to be intrusted with that power.  47 22426  Documents Read in  by Mr. Goldie  1 And then the next complete paragraph:  2  3 And I would observe that the three  4 difficulties which appear to be met arise 1.  5 from the migratory & scattered character of the  6 population.  2. from the large proportion of  7 aliens or visitors which exist in it & 3. from  8 the presence of the Indians whom it is  9 difficult to govern & protect without a settled  10 and understood policy and a strong Executive  11 power.  12  13 Tab 6 is Granville, who by this time was the  14 Secretary of State for Colonies to Governor Seymour.  15 And the last paragraph of his despatch reflects the  16 minute that I have just read.  17 Under tab 7 are documents relating to Rupert's  18 Land and its admission to Canada.  These are papers  19 which were ordered by the House of Commons in England  20 to be printed in August of 1869.  And I don't propose  21 going into any detail in these, my lord, but one or  22 two page references will perhaps be useful.  The page  23 numbers may be seen in the upper left-hand corner, and  24 sometimes left and sometimes right, but they start  25 with 89 on the first page, and then the second page is  26 the upper left-hand corner is 90, 91 and so on.  Does  27 your lordship see those?  2 8    THE COURT:  Yes.  29 MR. GOLDIE:  Page 96 then.  This is the resolution of the House  30 of -- the Canadian House of Commons -- well, actually,  31 resolutions of both the House -- both the House of  32 Commons and the Senate, and that's shown starting at  33 page 94.  But at page 96, the resolutions contain  34 these provisions, paragraphs 6 and 7 -- or 6, 7 and 8:  35  36 6.  That in the event of the Imperial  37 Government agreeing to transfer to Canada the  38 jurisdiction and control over this region, it  39 would be expedient to provide that the legal  40 rights of any corporation, company, or  41 individual shall be respected and placed under  42 the protection of courts of competent  43 jurisdiction.  44 7.  That upon the transference of the  45 territories in question to the Canadian  46 Government the claims of the Indian tribes to  47 compensation for lands required for purposes of 22427  Documents Read in  by Mr. Goldie  1 settlement, would be considered and settled in  2 comformity with the equitable principles which  3 have uniformly governed the Crown in its  4 dealings with the aborigines.  5 8.  That in any case any negotiation between  6 the Canadian Government and the Hudson's Bay  7 Company, for the termination of the rights of  8 the latter entered into in accordance with the  9 Despatch of the 17th June 1865, from the then  10 Secretary of State for the Colonies to his  11 Excellency the Governor General, should result  12 in an agreement between them, it is hereby  13 declared that such agreement must be submitted  14 to, and sanctioned by the Parliament of Canada  15 before the same shall have any force or effect  16 whatever.  17  18 And then at page 97 of the despatch from the  19 Governor General of Canada to the Secretary of State  20 for the Colonies of October the 2nd, 1868:  21  22 I have the honour to transmit two copies of  23 approved Minutes of the Privy Council of Canada  24 appointing the Honourable Sir George E.  25 Cartier, Baronet, [et cetera] and the  26 Honourable W.  McDougall...a delegation from  27 that body, to take part in the negotiations now  2 8                     pending between Her Majesty's Government and  2 9 the Hudson's Bay Company, with a view to the  30 annexation of the territory now held by the  31 Company to the Dominion of Canada.  32  33 And the -- on page 98 is the transmittal of a  34 petition or a "Humble Address" from the Governor  35 General of Canada to Earl Granville, the then  36 Secretary of State for the Colonies, and this is dated  37 the 4th of June 1869.  And this is the "Humble  38 Address" of the Senate and Commons of the Dominion of  39 Canada and this makes reference also, at the bottom of  40 page 98 and the top of page 99, to the appointment of  41 the delegation of Sir George Cartier and Mr. McDougall  42 to negotiate -- to participate in the negotiations.  43 At page 100 is a detailed -- a memorandum dated  44 March 22nd, 1869, paragraph eight.  And this -- this  45 is signed by Sir Stafford Northcote -- who was then  4 6 the Governor of the Hudson's Bay Company -- and  47 Cartier and McDougall.  Eight reads: 2242?  Documents Read in  by Mr. Goldie  1 8.  It is understood that any claims of  2 Indians to compensation for lands required for  3 purposes of settlement shall be disposed of by  4 the Canadian Government in communication with  5 the Imperial Government, and that the Company  6 shall be relieved of all responsibility in  7 respect of them.  8  9 What follows is -- are the details of the  10 negotiations which eventually resulted in the ultimate  11 acquisition by Canada of what is now Rupert's Land.  12 And the purpose of including them in here, my lord, is  13 as I have stated, the period over which this occurred  14 and the people who participated in it.  15 The deed of surrender is not in this group of  16 documents, it is in the counterclaim group of  17 documents, and I will refer to that when I come to  18 that selection.  19 Under tab 8 is Granville's despatch to Musgrave of  20 the 14th of August, 1869.  And this is a very well  21 known despatch, but I propose reading a good part of  22 it.  He refers first to his despatch of June the 17th  23 in which he communicated to Musgrave his appointment  24 to the government of British Columbia, and he says:  25  26 I informed you that I should probably have  27 occasion to address you on the question then  28 and agitation of the incorporation of that  29 Colony with the Dominion of Canada.  30 You are aware that Her Majesty's Government  31 have hitherto declined to entertain this  32 question, mainly because it could not arise  33 practically until the Territory of the Hudson's  34 Bay Company was annexed to the Dominion, but  35 also perhaps in the expectation that the public  36 opinion of British Columbia might have  37 opportunity to form and declare itself.  38 I have now to inform you that the terms on  39 which Rupert's Land and the North West  40 Territory are to be united to Canada, have been  41 agreed to by the parties concerned.  42  43 THE COURT:  What is the difference in that context, do you know,  44 between Rupert's Land and the Northwest Territories?  45 MR. GOLDIE:  Well, I think that the Northwest Territories were  46 those parts which lay beyond the watershed of the  47 Hudson's Bay, but which were under the control of the 22429  Documents Read in  by Mr. Goldie  1 Hudson's Bay Company, and that would include the --  2 THE COURT:  The McKenzie watershed?  3 MR. GOLDIE:  Yes.  4 THE COURT:  All right.  Thank you.  5 MR. GOLDIE:  And as we will see later, my lord, when the -- when  6 Canada came to provide for the administration, it  7 provided for the appointment of the Lieutenant  8 Governor of Manitoba and the Lieutenant Governor of  9 the Northwest Territories.  10 THE COURT:  Yes.  And of course the lands wouldn't be limited to  11 to the McKenzie watershed, there would be others.  12 Coppermine?  13 MR. GOLDIE:  They would go to the full extent of everything not  14 included in the Province of British Columbia -- or the  15 colony of British Columbia.  16 THE COURT:  Yes, right.  17 MR. GOLDIE:  And yes, and that's exactly what is said in the  18 next part of this despatch.  19 THE COURT:  Right.  20 MR. GOLDIE:  21  22 ...and that the Queen will probably be advised  23 before long to issue an Order in Council which  24 will incorporate in the Dominion of Canada the  25 whole of the British Possessions on the North  26 American Continent except the then coterminous  27 Colony of British Columbia.  28 The question then presents itself whether  29 this Single Colony should be excluded from the  30 great body politic which is thus forming  31 itself.  32  33 And then he goes on to say:  34  35 On this question the colony itself does not  36 appear to be unanimous.  But as far as I can  37 judge from the despatches which have reached  38 me, I should conjecture that the prevailing  39 opinion was in favour of Union.  40  41 Then the document itself seems to be a little  42 imperfect here.  43 Then going to the last paragraph, which is Her  44 Majesty's Government:  45  46 They believe that in a Legislature selected  47 from an extended area and representative of a 22430  Documents Read in  by Mr. Goldie  1 diversity of interests is likely to deal more  2 comprehensively with large questions, more  3 impartially with small questions, and more  4 conclusively with both than is possible where  5 controversies are carried on and decided upon  6 in the comparatively narrow circle in which  7 they arise.  8  9 My lord, I take it that that is a comparison  10 between the value of Parliament of the larger country  11 called Canada, as opposed to the single legislature of  12 British Columbia.  Or in terms of the minute of the  13 colonial office to which I made reference a few  14 minutes ago, it would be substituting the weight of  15 Ottawa for that of Downing Street.  16 Then over at page -- three pages on, it's 327 by  17 reference to the number in the upper right-hand  18 corner -- he has outlined what he considers to be the  19 advantages.  And he says:  20  21 The San Francisco of British North America  22 would under these circumstances hold a greater  23 commercial and political position than would be  24 allowable by the capital of the isolated Colony  25 of British Columbia.  26  27 Then at 329 he says:  28  29 The constitutional connection of Her  30 Majesty's Government with the Colony of British  31 Columbia is as yet closer than with any other  32 part of North America, and they are bound on an  33 occasion like the present to give for the  34 consideration of the community and the guidance  35 of Her Majesty's servants, a more unreserved  36 expression of their wishes and judgment than  37 might be elsewhere fitting.  38 You will therefore give publicity to this  39 despatch, a copy of which I have communicated  40 to the Governor General of Canada and you will  41 hold yourself as authorized either in  42 communication with Sir John Young --  43  44 Who was the Governor General.  45  46 -- or otherwise to take such steps as you  47 properly and constitutionally can for promoting 22431  Documents Read in  by Mr. Goldie  1 the favourable consideration of this question.  2  3 It goes on to say:  4  5 It will not escape you that in acquainting  6 you with the General views of the Government, I  7 have avoided all matters of detail in which the  8 wishes of the people and the legislature will  9 of course be declared in due time.  I think it  10 necessary, however, to observe that the  11 constitution of British Columbia will oblige  12 the Governor to enter personally upon many  13 questions - as the condition of Indian tribes,  14 and the future position of Government servants,  15 with which in the case of a negotiation between  16 two Responsible Governments he would not be  17 bound to concern himself.  18  19 As I say, that despatch, my lord, in accordance  20 with its instructions was publicized in the colony for  21 the purpose of facilitating or encouraging the union  22 of British Columbia with Canada.  23 Under tab 9 is Musgrave's letter to the Governor  24 General of Canada of the 10th of November or the 1st  25 of November -- I think it may be the first -- 1869,  26 and in which he says:  27  28 I have been acquainted by the Secretary of  29 State that Their Lordship had communicated to  30 you his despatch British Columbia number 84 of  31 the 14th August 1869.  32  33 That's the one I just read a few minutes ago.  And  34 then he is enclosing for Sir John Young's information,  35 a copy of his reply.  36 And seeking confidential information -- this is  37 on the next page -- with respect to matters which are  38 "likely to present difficulty."  Then the postscript  39 and then the reply to Granville, dated the 30th of  40 October, 1868.  And he says, "I have now" -- and this  41 is the next page, paragraph 2:  42  43 I have now printed Your Lordship's  44 Despatch in the local gazette in accordance  45 with your direction to give publicity to it.  46  47 And then several pages over, page 9, the number found 22432  Documents Read in  by Mr. Goldie  at the lower right-hand corner where he says, the  fourth line:  ...under your instructions - and to take the  conduct of the matter into my own hands from  those of persons who are not likely to carry it  to a successful [conclusion]...  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  Or whatever that word is.  THE COURT:  Well, can you read the next line:  "I believe such  a"?  MR. GOLDIE:  "I believe such an issue to be—"  THE COURT:  "Issue"?  MR. GOLDIE:  Yes.  I think, "such an issue".  THE COURT:  "To be possible," yes.  MR. GOLDIE:  Yes, "to be possible".  His — the first of two S's  is a little different from the second S.  THE COURT:  Yes.  MR. GOLDIE:  He goes on to say:  I believe such an issue to be possible; but the  difficulties in the way of its accomplishment  are practically far greater than, and of quite  a different character from any which have to be  overcome in the Eastern Provinces.  And that goes on at some length.  Under tab 10, my lord, I have had placed here --  THE COURT:  I think if it's convenient we might take the morning  adjournment now, Mr. Goldie.  THE REGISTRAR:  Order in court.  Court stands adjourned for a  short recess.  (PROCEEDINGS ADJOURNED AT 10:55 A.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability.  Toni Kerekes, O.R.  United Reporting Service Ltd. 22433  Documents read in  by Mr. Goldie  1 (PROCEEDINGS RECOMMENCED AFTER RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My Lord, I was just about to refer to tab 10.  That  6 is the publication of the Aborignees' Protection  7 Society, and it contains Sebright Green's letter about  8 conditions on Vancouver Island.  That is found at page  9 191 of the publication.  10 And then there is an additional excerpt from Mr.  11 Sproat's book, and then -- which is on page 193, and  12 on the same page is the Society's letter to Lord  13 Granville of the 3rd of November, 1869.  14 And then on page 194 Lord Granville's reply of the  15 15th of November, 1869, stating that a copy of the  16 letter would be sent to the Governor of British  17 Columbia.  18 Tab 11 is the confidential despatch of the  19 Governor General to Musgrave of December the 14th,  20 1869, where he acknowledges receipt of Governor  21 Musgrave's confidential despatch of November 1st, and  22 he says, "That despatch", and I am assuming he is  23 referring to Musgrave's despatch to Lord Granville,  24 which was enclosed in the letter to Sir John Young:  25  26 "That despatch explains with great clearness the  27 difficulties with lie in the way of union of  28 British Columbia to Canada.  I shall of course  29 consult my ministers confidentially on the  30 views you express and so soon as I am favoured  31 with their opinion I will lose no time and  32 again communicating with you."  33  34 And then Granville to Musgrave of the 31st of  35 December on the second page at the beginning of the  36 first complete paragraph he says:  37  38 "I approve of your having published my  39 despatch."  40  41 That was the despatch of no. 84.  42 And tab 13 is Musgrave to Young of the 20th of  43 February, 1870, and he there refers to what he is  44 proposing to do to advance matters.  He says:  45  46 "I have the honour to forward to Your Excellency  47 a copy of the message with which I caused the 22434  Documents read in  by Mr. Goldie  1 legislative council to be opened on the 15th  2 instant, and of a resolution which the  3 government will introduce His Excellency  4 embodying the terms on which it is recommended  5 that this colony should propose to join the  6 Dominion of Canada.  The resolution will be  7 passed; as it will be pressed as a measure of  8 the government.  This course is necessary to  9 obtain a basis for negotiation; for without the  10 aid of the official vote, opinion is so much  11 divided among the unofficial members of the  12 legislative council that the result of any  13 action on the subject would otherwise be very  14 doubtful.  The question of union has never  15 hitherto been brought before the community  16 indefinite form.  The chief advocates are so  17 much at variance among themselves that I have  18 found it desirable to reduce the proposition  19 into some tangible shape, which exhibits the  2 0 advantages which may be derived from  21 confederation.  The characteristics of this  22 colony are so unlike those of the eastern  23 provinces that it is necessary to adjust the  24 proposed arrangements upon a basis different  25 from that adopted in their cases.  The true  26 number of the population is not known, and it  27 includes a large number of Indians who are to a  28 great extent consumers.  The white habitants  29 are chiefly male adults of wasteful and  30 expensive habits.  The production of the colony  31 is very small, except of gold.  The consequence  32 is large importation of duty paying goods,  33 yielding revenue from customs far greater in  34 proportion to our estimated population than  35 that obtained from customs duties for the same  36 number in any part of the Dominion."  37  38 And then he goes on to state the basis upon which  39 he hopes to meet this problem, by having a notional  40 population in British Columbia far greater than the  41 actual population, but one derived from the customs  42 duties.  43 And then two or three pages on, the page where  44 there doesn't seem to be any numbering, but the  45 sentence at the top of the page is interrupted and  46 begins with the words:  47 22435  Documents read in  by Mr. Goldie  1 "The plan proposed will be found to be unfair."  2  3 THE COURT:  Yes.  4 MR. GOLDIE:  Paragraph numbered 5.  5  6 "The feature in my mind presenting the greatest  7 difficulty in the terms is contained in the 8th  8 article relating to construction of a railway  9 and wagon road.  But, whatever may be  10 eventually agreed upon, or found impossible,  11 with respect to these matters, so much  12 importance is attached to the opening of  13 communication that it would not have been  14 politic to omit this proposal in any terms now  15 brought forward.  Indeed, effective means of  16 communication through British territory must  17 sooner or later be found to be essential to any  18 real connection of this province with the  19 Dominion, and perhaps it is as well at once to  20 confront this difficulty."  21  22 Then he goes on to talk about the graving dock at  23 Esquimalt and other matters, and two pages on at  24 paragraph number 7 at the bottom of the page:  25  26 "I believe that assent to the scheme submitted  27 will be given cheerfully by a large majority of  28 the community.  The public generally have  29 received it with much satisfaction.  But it is  30 doubtful whether any important modification  31 would obtain acquiescence.  I propose, however,  32 that a delegation from the council should  33 proceed to Ottawa after the termination of the  34 session for the purpose of discussing the  35 subject with your government.  And it is not  36 impossible that I may be able to confer with  37 you personally as I have asked for leave to go  38 to New York in the early summer on private  39 affairs, and if it should be desirable I could  40 visit Ottawa at that time."  41  42 I may point out with respect to that, My Lord,  43 that the Governor suffered a compound fracture of his  44 leg, and was unable to go to New York.  So instead he  45 went to San Francisco, the private affair being his  46 marriage.  47 And then two pages -- a page further on, paragraph 22436  Documents read in  by Mr. Goldie  1 number 9.  2  3 "In Lord Granville's despatch no. 84 of 14th  4 August which was communicated to Your  5 Excellency he mentioned the condition of the  6 Indian tribes as among some questions upon  7 which the constitution of British Columbia will  8 oblige the Governor to enter personally.  I  9 have purposely omitted any reference to this  10 subject in the terms proposed to the  11 legislative council.  Any arrangements which  12 may be regarded as proper by Her Majesty's  13 Government can I think best be settled by the  14 Secretary of State, or by me under his  15 direction, with the Government of Canada.  But  16 'Indians, and lands reserved for Indians' form  17 the twenty-fourth of the classes of subjects  18 named in the 91st section of the union which  19 are expressly reserved to the legislative  20 authority of the Parliament of the Dominion.  I  21 have the honour to be ..."  22  23 Et cetera.  Then follows the Gazette, the British  24 Columbia Gazette of the 15th of February, 1870, which  25 contains the Governor's address, and following that  26 the proposed terms of confederation.  27  28 "The Dominion of Canada arranged by the Governor  29 of British Columbia in Council.  30 Resolved, That it is expedient that the colony  31 of British Columbia should be confederated with  32 Canada, on the following Terms and Conditions;  33 that is to say:"  34  35 And then follows 1 through 16.  There is, of  36 course, no reference in this to Indian matters, as  37 Governor Musgrave stated.  38 THE COURT:  Is this the terms that were finally agreed upon?  39 MR. GOLDIE:  This is what was agreed to in the provincial -- in  40 the colonial legislature.  These were then taken --  41 these were then sent to Ottawa, and in the -- in May  42 and June of that year a delegation went to Ottawa and  43 settled the terms of what eventually became the Terms  44 of Union.  45 THE COURT:  They were different from these?  46 MR. GOLDIE:  Not very much, but they included Term 13, which  47 relates to Indians.  And the main change, as seen at 22437  Documents read in  by Mr. Goldie  1 that time, is the difference between Term 8 of what is  2 before you now, My Lord, and what became Term 11,  3 which related to the railway.  Term 8 contemplated the  4 opening of a coach road.  5 THE COURT:  Yes.  6 MR. GOLDIE:  To be ultimately followed by a railroad.  And it  7 was the major alteration, was to abandon the idea of a  8 wagon or coach road, and go for the railroad.  9 Under tab 14 is the Governor General's  10 acknowledgement of Musgrave's despatch to him, and he  11 says:  12  13 "I have the honour to acknowledge with thanks  14 the receipt of your letter of the 20th of  15 February, no. 11, transmitting a copy of the  16 message with which on the 15th of February  17 caused the legislative council of British  18 Columbia to be opened together with a copy of a  19 resolution which your government proposes to  20 introduce on the subject of a political union  21 with the Dominion of Canada."  22  23 And its enclosure.  Now, I think there is probably  24 a sentence missing.  Yes, there is a sentence missing.  25 And then it goes on to say:  26  27 "And its enclosures to be laid before the Privy  28 Council of the Dominion for their  29 conversation."  30  31 Tab 15, the debates in the British Columbia House,  32 and these debates are a portion only.  They are  33 selected because of the reference to the Indian  34 population.  And the upshot of it was a reference to  35 the Canadian system.  This is on page 146, My Lord.  36 Mr. Holbrook about a third of the way down the page  37 says:  38  39 "Hon. MR. HOLBROOK - I have very great pleasure  40 in bringing this resolution forward with  41 reference to the Indian tribes.  42 Hon. ATTORNEY-GENERAL - I ask the indulgence of  43 the Hon. Member whilst I interpose a few words.  44 On a former occasion a very evil impression was  45 introduced in the Indian mind on the occasion  46 of Sir James Douglas' retirement.  I ask the  47 Honourable gentlemen to be cautious, for 2243?  Documents read in  by Mr. Goldie  1 Indians do get information what is going on.  2 Hon. MR. HOLBROOK - My motion is to ask for  3 protection for them under the change of  4 government.  The Indians number four to one  5 white man, and they ought to be considered.  6 They should receive protection.  7 Hon. ATTORNEY GENERAL -  These are the words  8 that do harm.  I would ask the Hon. Magisterial  9 Member from New Westminster to consider.  10 Hon. Mr. HOLBROOK -  I say they shall be  11 protected.  I speak of Indians of my own  12 neighborhood on the Lower Fraser.  13 Hon. Mr. ROBSON - I rise to a point of  14 privilege.  I think that the warning of the  15 Hon. Attorney-General is necessary.  This is  16 the sort of decision which does harm.  17 Hon. Mr. DeCOSMOS - Don't report it.  18 Hon. Mr. HOLBROOK - I do not view it in that  19 way.  I say that the Indians of the Lower  20 Fraser are intelligent, good settlers.  I ask  21 that they receive the same protection under  22 Confederation as now.  2 3 Hon. Mr. HUMPHREYS - I would ask what  24 protection they have now?  25 Hon. Mr. HOLBROOK - They have protection in  26 being allowed to occupy land, and they enjoy  27 equally with white people the protection of the  28 law, and I ask the House to keep them in the  29 same position.  30 Hon. ATTORNEY GENERAL - If the Indians had no  31 better protectors than the Hon. Magistrate from  32 New Westminster, I should not envy them their  33 protection.  The Hon. gentleman must have  34 forgotten the directions of the Imperial  35 Government to His Excellency the Governor in  36 Lord Granville's despatch."  37  38 And that was the matter that the Indians should be  39 preserved to the governor himself.  And then there is  40 a further discussion about matters, and ultimately the  41 amendment was withdrawn.  42 THE COURT:  Do you know who Mr. Robson represented?  He said:  43  44 "I speak in the name of 65,000."  45  46 What was his riding?  Do you know?  47 MR. GOLDIE:  Well, none of these people really had a riding. 22439  Documents read in  by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  I see.  MR. GOLDIE:  They were all virtually appointees.  Some of them  held official office under the Attorney General, for  instance, was an appointee, a career civil servant.  Mr. Robson came from the mainland, and --  THE COURT:  He was a publisher?  MR. GOLDIE:  He was a publisher, and I think that's what he is  referring to.  THE COURT:  Circulation —  MR. GOLDIE:  Yes.  And I think he —  THE COURT:  Exaggerates that too.  MR. GOLDIE:    I think that's the unpaid circulation.  THE COURT:  Spoken like a journalist, but we won't publish that.  MR. GOLDIE:  16 is Musgrave to Trutch.  And I should say that  the delegation that was chosen to go to Ottawa was Mr.  Trutch, who is the Commissioner of Lands and Works,  Dr. Helmcken, who is a -- had been opposed to  confederation, and Dr. Carrall, who is from, I believe  up country.  And Musgrave says:  "My Dear Trutch:  I send you the 'something' of  the minutes with which I propose to furnish  you.  I think it states pretty clearly the view  which I take of the matter, but"  Something.  THE COURT: "Pray".  MR. GOLDIE:  "Pray offer".  THE COURT:  "Some suggestion".  MR. GOLDIE:  "... some suggestions which occur to you.  You  could show it to Sir John MacDonald as given to  you for your guidance, and what I have said  will from a text upon which you can discuss  more fully and at length."  Then Musgrave to the Governor General of the 8th  of May, 1870, the third paragraph -- the second  paragraph:  "The delegation proceeds by this mail packet  which takes this letter."  And by mail packet they travelled to San Francisco  and then over land from there. 22440  Documents read in  by Mr. Goldie  1  2 "They are three intelligent energetic men well  3 qualified to present our case, but I have  4 particular confidence in Mr. Trutch, our Chief  5 Commissioner of Lands and Works."  6  7 THE COURT:  "Who was able and cautious, who was ..."  8 MR. GOLDIE:  9  10 "Who was an able and cautious man and would be a  11 valuable public servant in any good community.  12 I have regretted that I am not able to  13 visit Ottawa myself at the time.  I think it  14 might have been of use to so in respect of some  15 special matters.  But I am still too much of a  16 cripple to undertake any travelling."  17  18 18 is Musgrave's letter to Sir John A. MacDonald.  19  20 "My Dear Sir John,  21 I have given my Delegates a formal  22 introduction in my desp. to Sir John Young, but  23 I wish to furnish them with a more confidential  24 one to you.  Carrall I think you already know,  25 he is a good fellow, is a staunch confederate,  26 but I scarcely think that he understands the  27 details or the difficulties of the question of  28 union.  Dr. Helmcken is scarcely a confederate  29 at all, but he knows that I can best him on the  30 principles if the terms are good, and  31 practically he admits that the question will be  32 one of terms.  I have had much difficulty in  33 persuading him to go, but I regard it as  34 important to get him to do so if I could.  He  35 is very influential with an important class  36 here, which is not the noisiest or most  37 talkative, but will have a great deal to say on  38 the settlement of the question.  You must  39 convert him entirely."  40  41 And then the man -- over the next page, midway  42 down -- about halfway down the paragraph, the sentence  43 that begins with the words:  44  45 "The man to whom I look now, however, to do the  46 chief part of the work of the delegation is Mr.  47 Trutch, our chief commissioner of Lands and 22441  Documents read in  by Mr. Goldie  1 Works.  He is an able and a cautious man, who,  2 would be a valuable public servant anywhere.  3 He knows this colony thoroughly, and as an  4 engineer can give information which may be  5 valuable in many respects about the Railway  6 question, which I regard as the only important  7 difficulty in our negotiations."  8  9 And then on the last page he says in the first  10 complete paragraph:  11  12 "If you will give us good terms, and the  13 delegations can come to satisfactory  14 understanding with you, I am hopeful that I can  15 conduct the remainder of the proceedings to a  16 successful issue."  17  18 Under tab 19 is Dr. Helmcken's diary.  At page  19 261 -- I should say, My Lord, that the -- that  20 whatever documents were kept with respect to the  21 negotiations were destroyed, or perhaps there were no  22 documents kept, and by general consent Helmcken's  23 diary was regarded as the one which provides the best  24 indication of the day-to-day discussions.  25 Page 255.  And this is after they reached -- this  26 is while they are still in Victoria, but -- as I  27 understand it.  He says:  28  29 "At the next meeting or so after we adjourned to  30 luncheon - (in Government House as usual), and  31 after lunch Trutch met me in the hall, and  32 said, 'Helmcken, your idea of a wagon road and  33 railroad are good, but on thinking the matter  34 over I think Confederation will be valueless  35 without a railway to the Eastern Canada!'  36 Trutch and I were friends!  He almost took my  37 breath away.  'Heavens, Trutch, how are they to  38 build it?  - And as to operate it - well, I do  39 not see the way.'  'Well,' says Trutch, 'but I  4 0 think I do.'  'Well you know more about  41 railways than I anyyhow.'  'Then', says Trutch,  42 'suppose I propose, that there shall be, not  43 your little tho difficult road, but a railroad  44 all the way to the East, will you assist me?'  45 'Yes Trutch with both hands.'  Now in the above  46 few words was the embryo of the Canadian  47 Pacific Railroad." 22442  Documents read in  by Mr. Goldie  1  2 Then page 257 :  3  4 "Before this period ..."  5  6 This is the first complete paragraph.  7  8 "Before this period, telegraphic communication  9 existed between the Atlantic and Pacific, so  10 doubtless all our proceedings and terms  11 required, were duly telegraphed to the  12 authorities by the Governor - and doubtless  13 Governor Musgrave took our side.  So it may  14 reasonably be believed that the terms sent down  15 to the Assembly had in the main been agreed to  16 by the government at Ottawa."  17  18 And then page 259 in the second paragraph he says  19 in the third line:  20  21 "To make my narrative a little concise, I shall  22 avoid incidents of travel - they may come in  23 ;bye and bye.  The journey from San Francisco  24 by railway opened our eyes not a little, for a  25 railway had been built through a mountainous  26 country quite as bad as that of B. Columbia."  27  28 Over the page, 260, after -- well, on the same  29 page of the last line:  30  31 "The Governor General invited us to dinner and  32 very quietly said, 'They want you and British  33 Columbia in very badly - you understand'!!!  34 Here was an eye opener!!  Of course there was  35 the usual 'cards' from all the officials and  36 others and returns ...."  37  3 8 And so on.  39  40 And then the second complete paragraph, beginning  41 with the words:  42  43 "We very soon found ..."  44  45 And this is after meeting the cabinet.  46  47 "We very soon found that they knew as much of 22443  Documents read in  by Mr. Goldie  1 the subject as we did, nevertheless went  2 through the whole of the terms, giving the  3 reason therefore, and answering objections.  4 Sir G. Cartier - Tilley (blank in MS) were  5 there, but Sir John A. MacDonald was very ill  6 and he had secluded rooms in the parliament  7 buildings.  I may say at once, that the only  8 delegate who saw him was Carrall.  Sir John  9 never appeared at the conferences, but it was  10 understood, that everyone knew his opinions -  11 that the Council acted according to hs views,  12 but for all this Sir G. Cartier was our man in  13 the business - he was the leader in the Council  14 chamber - yet it seemed as though the whole had  15 been thought over and prearranged.  Of course I  16 urged my point about the financial affairs -  17 and representation in accordance.  I was asked  18 about the mainland but referred them to Carrall  19 and Trutch.  Trutch had his say about  20 Railroad - Dry Dock, et cetera.  Trutch was  21 asked whether a RR could be built through the  22 country and Trutch gave a verbal sketch of a  23 road through Eagle Pass to the Fraser - his  24 experience with the American overland line."  25  26 And then at page 261, the second to last  27 paragraph:  28  29 "The wagon road was by consent scratched out -  30 useless as the R.R. had to be built in a short  31 time.  Trutch in the Council now drew up the  32 railway clause, which with some little  33 amendment was agreed to by all, and so became  34 part of the cast iron terms."  35  36 And then over the page at 262 he talks about the  37 financial returns, and in the first complete paragraph  38 Sir Francis Hincks' disagreeing with the idea of using  39 a population of 120,000.  And then Sir George Cartier  40 replies:  41  42 "'Everybody knows that B.C. does not possess  43 this number, and we cannot go to parliament and  44 say that she does.  Why Helmcken himself said  45 the population does not exced forty thousand -  46 but that each individual consumes of imported  47 goods three times as much as one of 'old 22444  Documents read in  by Mr. Goldie  1 Canada'.  We'll admit this - admit them to be  2 entitled to the money - but not the population.  3 Say the population may be 60,000 - they come in  4 at $3.77 (I think).  Now we have to make up the  5 money somehow.  Suppose we give them a $100,000  6 per annum for the railway belt.'  I smiled.  7 'Oh', said Sir George 'I know what you are  8 smiling about, you promised to give us the land  9 for the railway for nothing!  We have read the  10 debates of your House in these matters, know  11 all your reasons and opinions!!  I offer you  12 $100,000 per annum - and you shall have all the  13 representation asked for in the Commons and  14 Senate altho it will be out of all proportion  15 to the population, still we can get over this -  16 your population will increase."  17  18 And then —  19 THE COURT:  Sounds like Meech Lake.  20 MR. GOLDIE:  I would like to think with somewhat more successful  21 outcome than the present Meech Lake has.  22 Then there is a comparison between the two Terms  23 of Union in Appendix 3, which is Willard Ireland's  24 work, and then follows -- the first part of which I  25 was reading is Helmcken's reminiscences.  What I now  26 refer to, My Lord, is Helmcken's actual diary,  27 beginning at page 346.  And at page 348.  28 THE COURT:  I'm sorry, what tab is that?  29 MR. GOLDIE:  Still under the same tab, My Lord.  30 THE COURT:  I'm sorry.  31 MR. GOLDIE:  After the -- after his reminiscences at page 267.  32 THE COURT:  Thank you.  33 MR. GOLDIE:  There is Appendix 3, which is the introduction to  34 Helmcken's diary by Willard Ireland.  35 THE COURT:  Yes.  All right.  36 MR. GOLDIE:  And at page 342 Mr. Ireland says this:  37  38 "Hitherto a veil of secrecy has shrouded the  39 negotiations which followed.  The various  40 occasions upon which the delegates met with  41 representatives of the Canadian cabinet were,  42 of course, noted in the press; but no details  43 whatever of the proceedings were made public,  44 either then or later.  Moreover careful search  45 in the archives of the Dominion, and in other  46 collections, has failed to produce any minutes  47 or memoranda, and after a lapse of almost 22445  Documents read in  by Mr. Goldie  1 seventy years it still appeared that not one of  2 the participants had left any records of the  3 discussions which took place."  4  5 And then he goes on to say now they have turned  6 up.  And as I say, he compares the two at page 343.  7 And then at page 346 is the beginning of Helmcken's  8 actual diary of the time.  At page 348 -- this is June  9 the 7th.  10  11 "We attended at three o'clock but found Sir G.  12 Cartier engaged and continued so for half an  13 hour longer.  He then excused himself in a most  14 merry way, took us to wine and himself to a  15 sandwich likewise, he not having had time to  16 take anything before.  It is astounding how Sir  17 G. works - morning, noon, night, brings no  18 cessation.  Of course the first thing entered  19 upon in council was the 120,000 population."  20  21 And then I read what he said in his reminiscences  22 about that.  And so it goes on a day-by-day basis  23 until we get to -- and I'm not going to go through the  24 details of that.  But at page 355 in the second  25 paragraph the words -- the four lines:  26  27 "The Council had sat 4 hours then adjourned, but  28 not before the subject of government  29 responsibility; i.e., Responsible Government  30 had been talked over, but we were obliged to  31 wait for telegram from Governor."  32  33 Then there is footnote 1:  34  35 "No explanation of this reference seems to be  36 available ."  37  38 At the time, My Lord, it appears that Governor  39 Musgrave was in San Francisco, and there is some  40 grounds for believing that he was in telegraphic  41 communication with the delegation.  There is another  42 reference to that.  43 And then on page 356 there is a reference to  44 pensions, which was one of the two items that were  45 reserved to -- were reserved to the Governor.  And  46 then on the same day, which is after the reference to  47 the telegram, the same day there is a reference at 22446  Documents read in  by Mr. Goldie  1 page 357 to the other item, reserved to the Governor,  2 and that's the third paragraph:  3  4 "The clause about Indians was very fully  5 discussed.  The Ministers thought our system  6 better than theirs in some respects, but what  7 system would be adopted remain for the future  8 to determine.  I asked about Indian wars and  9 Sir G. Cartier said that it depended upon the  10 severity, as a rule the expense would have to  11 be borne by the Dominion Government."  12  13 Then under tab 20 is the Governnor General's  14 acknowledgement of Musgrave's letter introducing the  15 delegation.  16 21 is the Governnor General's report to Granville,  17 and stating that the delegates had arrived.  18 At 22 is the Dominion Order in Council at 155B of  19 the 1st of July, 1870, which considers the despatch  20 dated the 7th of May, 1870 from the Governor of  21 British Columbia, together with certain resolution  22 submitted by the government of that colony annexing  23 the resolution as passed by the Legislative Council.  24 And then interviews with the B.C. delegates, a full  25 discussion with them, and the committee of the Privy  26 Council now submits for approval the following terms  27 and conditions to form the basis of a political union  28 between British Columbia and the Dominion of Canada,  29 and then follow what are really the present Terms of  30 Union.  Number 1:  31  32 "Canada shall be liable for the debts and  33 liabilities of British Columbia existing at the  34 time of Union.  35  36 Number 2 speaks to the question of debt, the  37 payments to -- by Canada of British Columbia and so on  38 until we get to 11.  39  4 0 "The government of the Dominion undertakes to  41 secure the commencement simultaneously, within  42 two years of the date of the union, of the  43 construction of a railway from the Pacific  44 towards the Rocky Mountains ...  45  46 Et cetera.  This is the clause that was said to  47 have been drafted by Trutch. 22447  Documents read in  by Mr. Goldie  1 And then 13 is the present 13.  2  3 "The charge of the Indians, and the trustee in  4 management of the lands reserved for their use  5 and benefit, shall be assumed by the Dominion  6 Government, and a policy as liberal as that  7 hitherto pursued by the British Columbia  8 Government, shall be continued by the Dominion  9 Government after the union.  To carry out such  10 policy tracts of lands with such extent as it  11 is hitherto been the practice of the British  12 Columbia government to appropriate for that  13 purpose, shall from time to time be conveyed by  14 the local government to the Dominion Government  15 in trust for the use and benefit of the Indians  16 on application of the Dominion Government; and  17 in case of disagreement between the two  18 governments respecting the quantity of such  19 tracts of land to be so granted the matter  20 shall be referred to the decision of the  21 Secretary of State for the colonies."  22  23 And that Council minute is signed by Sir George  24 Cartier on the 1st of July, 1870, and approved by the  25 Governor General on that date.  26 And then the attachments consist of Musgrave's  27 letter and the resolutions carried with the  28 delegation.  29 23 is Musgrave's -- Musgrave to Granville of the  30 2nd of July, where he states:  31  32 "Referring to my despatch no. 84 of the 11th  33 ultimo.  I have the honour to report that I  34 returned to Victoria this morning and have  35 resumed the administration of the government."  36  37 That is to say he returned from San Francisco.  38 24 is Sir John Young to Lord Granville of the 5th  39 of July of 1870, and reports on the negotiations.  And  40 he introduces Trutch --  41 THE COURT:  I'm sorry, this is when?  From whom?  42 MR. GOLDIE:  From the Governor General of Canada.  4 3    THE COURT:  Yes.  44 MR. GOLDIE:  To the colonial to — to Lord Granville and Sir  45 John Young.  States on July 5th, 1870:  46  47 "I have the honour to introduce to Your 2244?  Documents read in  by Mr. Goldie  1 Lordship's notice and acquaintance the  2 Honourable Joseph W. Trutch chief commissioner  3 of Lands and Works for the colony of British  4 Columbia who is proceeding to England partly  5 for relaxation from business and partly in  6 reference to matters of public import.  Mr.  7 Trutch as one of the delegates from British  8 Columbia has taken a leading part in the  9 negotiations with the ministers of the Dominion  10 for the union of that with Canada.  11 He was highly recommended to me by Gov.  12 Musgrave and has certainly borne out the  13 character he received.  He is a clear headed  14 sensible man thoroughly versed in all that  15 concerns the colony with which he is connected  16 and the advice he has given and the degree of  17 resource he has exhibited has done much towards  18 bringing the negotiations to the satisfactory  19 point which they have reached."  20  21 And Young's despatch under tab 25 is a more formal  22 despatch reporting on the negotiations.  23 26 is Young to Musgrave of July the 7th,  24 announcing the satisfactory termination of the  25 negotiations, and enclosing the terms of agreement in  2 6 his memorandum.  27 27 is the colonial office copy of Young to  28 Granville at the tab with the minutes of the colonial  29 officers on it.  It's the same despatch as Young to  30 Granville under tab 25.  31 Tab 28, and this is dated the 28th of July, 1870,  32 and is Musgrave to Trutch.  33  34 "My dear Trutch - I did not write to you from  35 San Francisco as I really had nothing then to  36 add to what I expressed in the telegram, that  37 is that I was much pleased at the progress you  38 were making in the negotiations as reported in  39 your letter of 9th of June.  40 And I was then otherwise personally  41 occupied I waited until I should receive  42 further particulars from you on my return here.  43 I duly received your second letter of the 26th  44 of June and was quite satisfied with its  45 contents, but I was not able to write by the  46 return mail and indeed preferred to postpone my  47 letter until I had seen Helmcken then expected, 22449  Documents read in  by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  and got the final intelligence from him."  So it would appear quite clear from Musgrave's  letter that he sent at least one telegram to the  delegation at the time of the negotiations in Ottawa.  That's a typed script, as Your Lordship sees.  29 begins a series of Order in Council with  respect to Manitoba and the Northwest Territories, and  Your Lordship will see that Sir George Cartier was  again in the chair.  It was approved on August the  2nd, 1870, and it approves the instructions to Mr.  Archibald, Lieutenant Governor of the Province of  Manitoba.  To those instructions I refer on the fourth  page of the instructions.  THE COURT:  Some of these pages have the number 41A.  MR. GOLDIE:  Yes, they do.  That, I think, is simply the  reference to the enclosure to the Order in -- the  attachment to the Order in Council.  I think it is the  number of the Order in Council, I should say.  THE COURT:  I see.  All right.  MR. GOLDIE:  But it's a paragraph numbered 9.  THE COURT:  Yes, all right.  MR. GOLDIE:  He says:  "In order to enable you to select under the  provisions of the 31st section of the Act."  That's the Manitoba Act.  "And under the regulations to be from time to  time made by the Governal General in Council,  such lots or tracts from among the ungranted  lands in such parts of the Province of Manitoba  as you may deem expedient to the extent  mentioned in the said section and to divide the  same among the children of the half-breed heads  of families residing in the province."  That makes reference to a specific provision in  the Manitoba Act that the claims of the half breeds  should be satisfied in that manner.  And then paragraph 13, two pages further on:  "You will also make a full report upon the State  of the Indian tribes now in the province, their  numbers, wants and claims; the system  heretofore pursued by the Hudson's Bay Company 22450  Documents read in  by Mr. Goldie  1 in dealing with them accompanied by any  2 suggestions you may desire to offer with  3 reference to their protection and to the  4 improvement of their condition."  5  6 The next tab is the Order -- is an Order in  7 Council of the same day, August the 2nd, 1870, the  8 chairman of the Council being Cartier.  And this is  9 preliminary instructions to Archibald in his capacity  10 of Lieutenant Governor of the Northwest Territories.  11 And in the instructions themselves, beginning  12 immediately following the Order in Council, at the  13 bottom of the page the Lieutenant Governor was  14 directed, and I quote:  15  16 "You will, with as little delay as possible open  17 communication with the Indian bands occupying  18 the country lying between Lake Superior and  19 the province of Manitoba, with a view to the  20 establishment of such friendly relations as may  21 make the route from Thunder Bay to Fort Garry  22 secure at all seasons of the year, and  23 facilitate the settlement of such portions of  24 the country as it may be practicable to  2 5 improve."  26  27 The next paragraph refers to assuring the Indians  28 of your desire to establish friendly relations.  And  29 this, of course, makes reference -- the route is the  30 reference to the railroad.  31 And then tab 31 is a third Order in Council of the  32 2nd of August, 1870, with Sir George Cartier again in  33 the chair, and appointing Archibald Lieutenant  34 Governor of the Province of Manitoba, appointed  35 administrator on behalf of the Government of Canada of  36 the ungranted or waste lands in that province vested  37 in the Crown.  And that Crown is, of course, the Crown  38 in Right of Canada.  39 Under tab 32 is the Governor General of Canada to  40 the Earl of Kimberley, who at that time had become the  41 Secretary of State for the colonies.  42 And then tab 33 is the aboriginal -- Aborignees'  43 Protection Society's publication, "The Colonial  44 Intelligence", in which is printed Musgrave's letter  45 of the 29th of January, enclosing Trutch's letter  4 6 of -- Trutch's memorandum commenting on Sebright  47 Green's letter. 22451  Documents read in  by Mr. Goldie  1 34, "Journals of the Colonial Legislature", the  2 adoption which -- which records the adoption of the  3 Terms of Union on the 20th of January, 1871.  4 35 is a sessional paper of Canada, which --  5 THE COURT:  The provincial adoption and Terms of Union is on  6 this first page, is it?  7 MR. GOLDIE:  Is under 34, My Lord.  It's the first page, yes.  8 Well, it goes over.  9 THE COURT:  No, I don't think it is.  10 MR. GOLDIE:  It starts off on the first page, 389, and then over  11 at page 393:  12  13 "On the question of the adoption of the above  14 address being put it was carried unanimously  15 and resolved accordingly.  16 Then Trutch moved, the Hon. Mr. Nathan  17 seconding, that the following Address be  18 presented to His Excellency the Governor: -  19 May it please Your Excellency:  20 We, the Members of the Legislature, in Council  21 assembled, having agreed to an Address to Her  22 Most Gracious Majesty, praying that Her Majesty  23 will be most graciously pleased, by and with  24 the advice of Her Most Honourable Privy  25 Council, to admit British Columbia, under the  26 provisions of the 146th Section of the 'British  27 North America Act,' into the Dominion of  28 Canada, on the basis of the terms and  29 conditions offered to this Colony by the  30 Government of the Dominion of Canada, as in  31 such Address set forth, do hereby pray that  32 Your Excellency may be pleased to transmit such  33 Address to Her Majesty's Principal Secretary of  34 State for the Colonies, to be laid at the foot  35 of the throne."  36  37 So that's the -- records the acceptance by the  38 colony of the Terms of Union, and the loyal address  39 praying that it may be carried out.  40 And if Your Lordship under the next tab, which is  41 sessional papers of the Dominion, which -- under which  42 the Governor General transmits for the information of  43 the House of Commons papers relative to the proposed  44 union of British Columbia and the Dominion of Canada.  45 This is the 27th of February, 1871, and it contains  46 all the official correspondence.  I don't see page  47 numbers on this.  The sixth page from the end, My 22452  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Documents read in  by Mr. Goldie  Lord, there is a despatch from Musgrave to the  Governor General dated the 23rd of January, 1871.  THE COURT:  Yes.  MR. GOLDIE:  He says:  "My Lord - I have the honour to forward for the  information of Your Lordship's advisers,  printed copies of an Address to The Queen,  which has been passed by the unanimous vote of  the Legislative Council, praying that Her  Majesty will be pleased, under the provisions  of the 146th section of the British North  American Act, to admit British Columbia into  the Dominion of Canada under the basis of the  terms and conditions offered to this Colony by  the Government of the Dominion of Canada."  At this date the Parliament had not -- the  Parliament of Canada had not acted.  Under tab 36 are the extracts from the debates in  the House of Commons in March of 1871 on the  resolutions respecting the admission of British  Columbia into the union of Canada.  And at page 663,  which is the left-hand column, is the reference to the  Term 13, the Indian terms.  And before reading it, I  should comment that the primary concern of the  opposition was the cost of building a railroad to  British Columbia.  Sir George Cartier compared it with  the American Railway from Omaha to the Pacific.  And  he said:  "Yet he would place the cost as at double the  rate of the American Pacific Railway, and the  utmost cost that could be incurred would be  $100,000,000.  But, whatever it would cost, he  would assure the House that there would be no  taxation on the country more than existed at  present (cheers).  A certain portion of the  public lands had been reserved for the Indians,  and the only guarantee that was necessary for  the future good treatment of the Aboriginees  was the manner in which they had been treated  in the past."  37, continuing extracts from Hansard relating  to -- primarily to the cost of building the railway.  38 is Musgrave to Trutch of the 12th of April, 22453  Documents read in  by Mr. Goldie  1 1871.  I needn't read that.  2 And then 39 is Sir John A. MacDonald to Sir  3 Francis Hincks.  MacDonald was in Washington as one of  4 the commissioners dealing with the negotiation of a  5 treaty between Great Britain and the United States  6 dealing with Canadian Fisheries, and his -- the whole  7 of this letter is taken up with the advice that he is  8 giving with respect to the negotiations with the  9 Indians in Manitoba, and it is put in here because of  10 the references to that, and the date of April 14th,  11 1871.  12 The Order in Council under tab 40, Dominion Order  13 in Council is the 25th of April, 1871.  And on page 2  14 the memorandum of the --  15 THE COURT:  What is this document?  Just a memorandum?  16 MR. GOLDIE:  It's an Order in Council, My Lord.  17 THE COURT:  Oh, all right.  18 MR. GOLDIE:  But attached to it is a memorandum, and the Order  19 in Council reads:  20  21 "The committee and Council have had under  22 consideration the annexed memorandum, dated 17  23 April 1871, from the Honourable Secretary of  24 State for the provinces recommending the  25 appointment of Nemyso MacKenzie Simpson as  26 Indian commissioner and submitting certain  27 suggestions in respect to his salaries, duties,  28 et cetera, and they respectfully advise that  2 9 Mr. Simpson be appointed as recommended and  30 treat the suggestions contained in the said  31 memorandum be approved and carried out."  32  33 And that was approved by the Governor General on  34 that date.  Then from the memo it appears clear that  35 the references to treaties and the arrangements with  36 the Indians in the northwest.  That appears from the  37 first paragraph of the memo.  The memo itself being  38 signed by Joseph Howe, who at that time was the  39 Secretary of State for the provinces.  40 THE COURT:  You say treaties and arrangements with Indians in  41 the northwest?  42 MR. GOLDIE:  Yes.  43 THE COURT:  Where do I find that?  44 MR. GOLDIE:  Has Your Lordship got the first page of the memo?  4 5 THE COURT:  Yes.  46 MR. GOLDIE:  Beginning with the words:  47 22454  Documents read in  by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. GOLDIE:  Yes.  "The Secretary of State for the provinces  ' ... calls the attention to the Privy Council  to the despatches laid from time to time before  the Council from the Lieutenant Governor of  Manitoba having references to treaties and  arrangements with the Indians in the northwest  THE COURT:  "Northwest" in that context doesn't mean British  Columbia?  MR. GOLDIE:  No.  It means that part of the lands acquired from  the Hudson's Bay Company which is not comprised in the  Province of Manitoba.  THE COURT:  Yes.  All right.  MR. GOLDIE:  That's the end of volume 1.  Volume 2 begins with  tab 41, and this is a Dominion Order in Council,  number 873 of the 25th of April, 1871, following  directly on after the one that I have just referred  to.  THE COURT:  This is a Dominion Order in Council?  MR. GOLDIE:  Both of these were Dominion Orders in Council.  And the Order in Council itself now makes reference to  negotiations of treaties with respect to the Indians  in the country from the watershed of Lake Superior to  the northwest angle of the Lake of the Woods, and from  the American border to the height of land from which  the streams flow towards Hudson's Bay.  Your Lordship  will recall that it is those -- it is that territory  through which the Canadian Pacific Railroad would have  to be built.  And at page 2 of the Order in Council  describes who the Indians are, and midway down the  page it states:  "It is thought be willing to surrender for a  certain annual payment their lands to the  Crown.  That the American Indians to the south  of them surrendered their lands to the  government of the United States for an annual  payment which has been stated to to him but not  on authority to amount to $10 per head for each  man, woman and child, of which $6 is paid in  goods and foreign money." 22455  Documents read in  by Mr. Goldie  1 And that -- the committee concurs on the  2 recommendations of the Secretary of State for the  3 provinces in that order, and that Order in Council is  4 approved.  5 At tab 42 is enclosing the commission, and giving  6 instructions to the people who were to negotiate that  7 treaty.  The date is the 6th of May, 1871.  8 THE COURT:  The treaty for the railway route?  9 MR. GOLDIE:  Yes.  10 THE COURT:  Yes.  11 MR. GOLDIE:  And as guidance to the commissioners.  And this  12 appears from the third page -- the object is stated on  13 the second page of the instruction, beginning with the  14 second complete paragraph:  15  16 "One object which the government have in view in  17 seeking the surrender of this attractive  18 country is to make the route now being open  19 from Thunder Bay to Manitoba secure for the  20 passage of immigrants and of the people of the  21 Dominion generally.  They also desire to throw  22 open to settlement at any portion of the land  23 included in this area which may be susceptible  24 of improvement and profitable occupation."  25  26 Then at the bottom of the next page these words:  27  28 "I enclose for your information a copy of the  29 surrender negotiated by Mr. Robinson in 1830 of  30 the Indians around Lake Superior, assumed to be  31 rich in minerals and extending to the height of  32 land which separates the tract included from  33 the territory of the Hudson's Bay Company."  34  35 And under tab 43, this is the 16th -- the Order in  36 Council of the 16th of May, 1871, and this is the  37 Imperial Order in Council which gives effect to the  38 desired Union of Canada and British Columbia.  39 Tab 44 is Mr. Trutch's letter to Lord Kimberley of  40 May 17th, 1871, which enclosed Governor Musgrave's  41 minutes of instruction dated the 9th of May, 1870.  42 That appears on page 360.  If Your Lordship would note  43 at the upper right-hand corner the pages, the printed  44 number, the one I am referring to is 360.  45 THE COURT:  I don't see numbers.  I'm sorry, got to look  46 sideways.  47 MR. GOLDIE:  It's not visible on the first page, but on the 22456  Documents read in  by Mr. Goldie  1  2  THE  COURT:  3  MR.  GOLDIE  4  5  THE  COURT:  6  7  MR.  GOLDIE  8  THE  COURT:  9  MR.  GOLDIE  10  THE  COURT:  11  MR.  GOLDIE  12  THE  COURT:  13  14  MR.  GOLDIE  15  THE  COURT:  16  MR.  GOLDIE  17  THE  COURT:  18  1  19  20  21  MR.  GOLDIE  22  23  THE  COURT:  24  25  MR.  GOLDIE  26  THE  COURT:  27  28  29  MR.  GOLDIE  30  31  32  THE  COURT:  33  MR.  GOLDIE  34  THE  COURT:  35  MR.  GOLDIE  36  THE  COURT:  37  MR.  GOLDIE  38  39  40  1  41  42  43  THE  COURT:  44  MR.  GOLDIE  45  THE  COURT:  46  MR.  GOLDIE  47  second page on the upper right-hand corner.  360?  :  360.  Primarily this letter is taken up with the  pension arrangements for the career civil servants.  I'm sorry, but my numbers only go to 145.  We are in  tab 44?  :  Tab 44, and it's a letter of May 17th, 1871.  Yes, it is.  I see the date.  May 17th, yes.  :  Mine runs this way.  Mine does too.  :  I see.  But my pages only go to -- what number is your first  page?  :  I can find no number on the first page.  Well, I have got 123.  :  I think Your Lordship is under tab 45.  No.  I'll tell you what I have.  I have got two  documents.  44 and 45 are the same thing.  I just have  a second.  My tab 44 is a duplicate of what's in tab  45.  :  I think what Your Lordship is looking for should be  under your tab 45.  My tab 45 is the same thing -- I think my tab 45 is  what it's supposed to be.  :  I agree.  You are missing what should be --  I am missing tab 44.  It's all right.  You can  finish it of.  I think that'll be easier to find.  Thank you.  You want me to go to?  :  If Your Lordship will go to not the first page, but  turn over to the second page.  The upper right-hand  corner do you see 359?  Yes.  :  If we go to 360.  I have it, thank you.  :  The right-hand column.  Yes.  :  And before I read from about the seventh line, I  should say that this letter deals with one of the two  subjects reserved to the Governor under Lord  Granville's despatch, namely pensions, and he says --  Trutch is saying to the Secretary of State for the  colonies --  What was the other one?  :  Indians.  Yes.  All right.  :  Trutch says in the -- about the seventh line: 22457  Documents read in  by Mr. Goldie  1 "The pension arrangement so proposed are set  2 forth in Governor Musgrave's minute of  3 instructions to me on my leaving Victoria for  4 Canada dated 9th, May 1870, a copy of which  5 minute was by His Excellency's direction handed  6 by me on my arrival at Ottawa to Sir George  7 Cartier at that time acting as Premier of the  8 Dominion during Sir John A. MacDonald's  9 illness.  I beg to enclose herewith the  10 original minute to which I refer, and to point  11 out that the assurance conveyed by the  12 Governnor General's despatch to Governor  13 Musgrave was in direct response to that  14 minute."  15  16 The purpose as to -- is to show to Your Lordship  17 that the original instruction found its way into the  18 hands of the Colonial Secretary at that point.  19 And indeed there is a copy of it -- no, that's  20 sufficient for my purpose there.  21 Under the same tab there is observations, and this  22 starting at page 378, My Lord.  The number being in  23 the same place as the preceding pages.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  It's headed "Minute for Mr. Trutch"  2 6 THE COURT:  Yes.  27 MR. GOLDIE:  And that is signed by Musgrave, and is dated the  28 9th of May, 1870, and presumably is the original which  29 Trutch handed to the Secretary of State in 1871.  And  30 he is there dealing with the question of pensions of  31 the Colonial Secretary, the Commissioner of Lands and  32 Works, the Attorney General, the collector of customs  33 and the Auditor General, and page 381 in the left-hand  34 side he --  35 THE COURT:  You say Secretaries of State.  You mean Imperial  36 Secretaries of State?  37 MR. GOLDIE:  Yes, that's right.  But these instructions that  38 were given to Mr. Trutch in 1807, a copy of those he  39 gave to the Governor General of Canada in May of that  4 0 year when he got down to Ottawa.  But here he is in  41 1871 discussing the matter with the Imperial Secretary  42 of State, and he has handed him the original of his  43 instructions, and at page 380 he --  4 4 THE COURT:  380 or 381?  45 MR. GOLDIE:  381, I should say.  It really begins at the bottom  46 of 380.  It says:  47 2245?  Documents read in  by Mr. Goldie  1 "As the Supreme Government of the colony as well  2 as the administration of all affairs relating  3 to the Indian tribes will rest with the  4 Dominion.  I regard it as of the greatest  5 importance to the tranquillity of the province  6 and the success of the union that these  7 officers should be officers of the Dominion,  8 and not be transferred to the control or  9 caprice of local party governments who through  10 mistaken motives of the economy by the  11 substitution of unpaid and irresponsible  12 magistrates or some such other party, might  13 entail upon the Government in Ottawa an amount  14 of trouble and expense not easily to be  15 computed.  I propose therefore that these  16 officers should be officers of the Dominion  17 subject of course to the authority of the  18 Lieutenant Governor as the deputy of the  19 Governor in chief and rendering aid under his  20 direction in the administration of local  21 affairs as they do now in the business of the  22 Lands and Works, the Post Office service, and  23 collection of revenue and other miscellaneous  24 duties."  25  26 And then page 384 he says:  27  28 "The administration of Indian affairs is a  29 matter to which my attention has been called by  30 Lord Granville as requiring special care in  31 respect of the arrangements for the union.  But  32 under the provisions of the British North  33 American Act it is one of a class of subjects  34 specially confided to the government of the  35 Dominion.  It will be necessary, however, that  36 I should be acquainted with for the information  37 of the Secretary of State, with the mode in  38 which the government of Canada proposed to deal  39 with this subject.  You will be able to point  40 out to them the policy which has been hitherto  41 persued with considerable success.  But it will  42 be necessary to explain that the tribes are far  43 more numerous and less civilized than those of  44 any part of the Dominion, and that the  45 circumstances in which they are placed are  46 different.  At present loyal, and amenable to  47 the control of the Govenrment because they have 22459  Documents read in  by Mr. Goldie  1 confidence in the protection afforded them.  2 But indiscreet change of policy or injustice on  3 the part of any local administration might lead  4 to very serious results.  It is for that reason  5 among others that I think it so highly  6 expedient that the magistrates who are in fact  7 government superintendent's in the outer  8 districts and have to administer so many laws  9 in which the Indians are interested, should be  10 officers of the Dominion, and not of the local  11 government, and should be able to conduct this  12 department of affairs directly under the  13 authority of the Lieutenant Governor himself,  14 who will be responsible to the government at  15 Ottawa."  16  17 As I say, a copy of that was given to the Governor  18 General by Mr. Trutch when he arrived in Ottawa.  And  19 really this document is in here to -- because this is  20 the only source that has been found for that  21 particular instruction to Trutch by Musgrave.  22 45 is dated May the 17th, 1871.  It's addressed to  23 the Secretaries of State, and it encloses --  24 THE COURT:  Who is it from?  25 MR. GOLDIE:  I think it's from the Governor General, My Lord.  26 THE COURT:  It encloses?  27 MR. GOLDIE:  Yes, it's from the Governor General, and it's to  28 the Earl of Kimberley, and it encloses a memorandum to  29 Mr. Dawson of the Public Works Department, containing  30 suggestions as to the policy to be pursued in  31 negotiating with the Indian tribes between Lake  32 Superior and Fort Gary for the surrender of them -- of  33 their territorial rights.  Now, the memorandum itself  34 begins at page 127.  35 THE COURT:  Can you conveniently finish it before it's time to  36 adjourn?  37 MR. GOLDIE:  I am not going to read anything further from that  3 8 document, My Lord.  39 THE COURT:  All right.  40 MR. GOLDIE:  So this would be a convenient time.  41 THE COURT:  While I — while I remember, I would like to inform  42 counsel, inconvenient as it may be, that I have to --  43 as we won't be meeting again after today, I would like  44 counsel to know that I will not be able to sit on  45 Friday, the 1st of December, as I have to go east for  46 a meeting on the Saturday.  And that will be in the  47 second week of -- second week of defence of Canada. 22460  Documents read in  by Mr. Goldie  1 And perhaps they will be finished by that time.  But  2 you might convey my compliments to your colleagues,  3 Mr. Frey, and other counsel will be advised  4 accordingly, so they can make their plans as well.  5 I'm sorry.  Will 1:30 be -- how are we getting along,  6 Mr. Goldie?  7 MR. GOLDIE:  I intend to finish this today.  I don't mean this  8 volume.  I intend to finish this and the others.  9 THE COURT:  All right.  Should we — is it convenient to come  10 back at 1:30?  11 MR. GOLDIE:  Yes.  12 THE COURT:  You want a few extra minutes?  13 MR. GOLDIE:  1:30 is fine.  Speaking for myself.  14 THE REGISTRAR:  Order in court.  Court stands adjourned.  15  16 (PROCEEDINGS ADJOURNED FOR LUNCHEON RECESS)  17 (PROCEEDINGS RECONVENED)  18  19 THE REGISTRAR:  Order in court.  2 0 THE COURT: Mr. Goldie.  21 MR. GOLDIE:  My Lord, I was coming to tab 46 in volume 2 of  22 Exhibit 1201.  And this is a direction from the  23 Secretary of State to the Governor General and to  24 Governor Musgrave with respect to the disposition of  25 documents.  And I refer to the second document under  26 the tab, which is that to Governor Musgrave, and he  27 says:  28  29 "In consequence of the approaching change in the  30 constitution of the Office of Governor of  31 British Columbia by which he will cease to be  32 an officer appointed by the Queen, and to  33 correspond direct with the Secretary of State,  34 I have to request that you will select from the  35 records of the colony all despatches from the  36 Secretary of State to the Governors which are  37 marked as confidential or secret and also  38 similar despatches from the governors to the  39 secretaries of states and cause them to be  40 packed in packing cases and transmitted to me  41 at this office."  42  43 Then at —  44 THE COURT:  Who is this from?  45 MR. GOLDIE:  This is from the Secretary of the State to the  46 colonies, and the first document is to the Governor  47 General, and it is with respect to the disposition 22461  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Documents read in  by Mr. Goldie  of -- disposition of despatches.  THE COURT:  Yes.  MR. GOLDIE:  And it arises out of the fact that from hence  forward the head of state, if I may use that term, of  British Columbia will be directing his correspondence  to the Governor General instead of the Secretary of  State to the colony.  The next is from the Dominion, a Secretary of  State for the provinces, Mr. Joseph Howe, addressed to  the Lieutenant Governor of British Columbia, which by  this time had become Mr. Trutch.  Dated the 19th of  August, 1871, asking the Lieutenant Governor to issue  his instructions.  This is in the first paragraph:  "For maps being prepared and forwarded to me  exhibiting the various Indian reserves  accompanied by a schedule thereof, and  explanations in regard to the manner in which  each became dedicated to the uses of the  Indians; and the particular band for which it  is held, and whether secured by Crown Patent,  or Order in Council or otherwise."  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  Mr  Goldie, what is the date on that?  is it?  Thank you.  What happened to Mr.  COURT:  I'm sorry,  GOLDIE:  August of  COURT:  That's 71,  GOLDIE:  Yes.  COURT:  All right.  Musgrave?  GOLDIE:  He -- when the colony became a Province of Canada,  he continued in the Imperial service.  COURT:  He went elsewhere?  GOLDIE:  And went elsewhere, yes.  COURT:  All right.  GOLDIE:  I know he was born in Antigua, I believe, and went  and served as Governor of Newfoundland, but where he  went after British Columbia I'm not sure.  Under 48 is Mr. Meredith's despatch to the  Lieutenant Governor Archibald.  Meredith was the under  Secretary of State for the provinces, as they were  then termed, Dominion official.  And the date is the  22nd of August, 1871.  And I note the postscript:  "Your telegram of the 6th announcing the signing  of the treaty has just been received."  And that relates to the treaty that Archibald was 22462  Documents read in  by Mr. Goldie  1 overseeing.  2 And at 49 it is a despatch from the Governor  3 General to the Earl of Kimberley, September, 1871, and  4 this is on the question of the disposition of  5 correspondence.  And he states that:  6  7 "I have the honour to transmit herewith copy of  8 a letter from the Secretary of State for the  9 provinces forwarding a copy of a communication  10 from Lieutenant Governor Trutch which states  11 that Governor Musgrave acting on instructions  12 from Your Lordship had transmitted to the  13 Colonial Office all Despatches marked secret  14 and confidential, and that the public or  15 numerical despatches will be forwarded to  16 Canada to the address of the Governor General's  17 secretary."  18  19 And the next tab 50 is forwarding to the  20 Lieutenant Governor of Manitoba the Order in Council  21 ratifying the treaty.  That's on the 14th of  22 September, 1871.  23 Tab 51 tells us of the unfortunate end of the  24 secret and confidential despatches of Governor  25 Musgrave.  The first page is a photocopy of a page  26 from the Public Records Office, the Public Record  27 Office in London, and the next page is of documents  28 included in that.  29 Now, it's not easy to follow, so I have had an  30 enlargement made of the two documents, and that should  31 follow in Your Lordship's book.  But if Your Lordship  32 will look at the second page, you will see entries  33 about three quarters of the way down -- the second to  34 last item.  Date is 1871, 27th of October, and then  35 the next comment the column headed "name", and:  36  37 "Subject - secret and confidential despatches of  38 B.  Columbia.  Forwards parcel of with schedule  39 and also despatches as to telegraphic cypher  40 acknowledging telegraph of 7th July."  41  42 Now, My Lord, under the column "name" Your  43 Lordship will see a stamp has been placed over "B.  44 Columbia", and that can be read by reference to the  45 same stamp at -- in the -- earlier in the column,  46 "destroyed under statute ."  4 7    THE COURT:  Uh-huh. 22463  Documents read in  by Mr. Goldie  1 MR. GOLDIE:  So that probably records the fate of the  2 despatches -- the secret and confidential despatches  3 of the -- between London and British Columbia.  4 And the other reference indicates that there is a --  5 there was a telegram between London and the Lieutenant  6 Governor also in the same group.  7 Tab 52 is an Order in Council dealing with an  8 attempted modification of the Terms of Union.  Your  9 Lordship may recall the Term 11, prohibited settlement  10 in the areas to be set aside for the railway, except  11 by preemption, and the province was seeking to have  12 that relaxed.  13 At tab 53, it is the act of incorporation of the  14 Canada Pacific Railway Company, assented to on the  15 14th of June, 1872.  That, of course, was not the  16 Canadian Pacific Railway.  It was its predecessor.  17 54 is a despatch of November the 4th, 1872 from  18 Trutch to the Secretary of State for the provinces,  19 the Dominion official, Mr. Howe, and it is part of a  20 series of despatches which deals with the disposition  21 of what is known as the Crown fund.  And on page 3 --  22 4 it should be, My Lord, a numeral 3 on the upper  23 right-hand corner of the paragraph beginning with the  24 words:  "In a memorandum dated 30th of October, 1872."  2 5    THE COURT:  Yes.  26    MR. GOLDIE:  27  28 "From the Hon. the Provincial Secretary  29 reporting in reference to the fund known as  30 the Crown fund of the late Colony of British  31 Columbia as follows:  - At the date of the  32 Union of the former Colony of British Columbia  33 with the Colony of Vancouver Island namely on  34 the 19th of November, 1866 the former had no  35 Crown fund."  36  37 Now, without going into the details, the Crown  38 fund in Vancouver Island was the fund derived from  39 sales of land directly by the Crown from which the  40 expenses of the Governor and of his officials was  41 paid.  In other words, the legislature of that colony  42 did not annually provide funds for the civil lists,  43 so-called, of civil servants.  It was --  44 THE COURT:  It wasn't just a Governor staff, it was the whole of  45 the —  46 MR. GOLDIE:  It was the Attorney General, the Commissioner and  47 so on.  Eventually a civil list was provided.  And 22464  Documents read in  by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  this question relates to the eventual disposition of  that fund.  55 is simply an acknowledgement of the Lieutenant  Governor's despatch.  57 is the colonial office approval.  58 is a despatch from the colonial office to the  Governor General of the 24th of January, 1873.  And on  page 2, and we are here talking about the cypher used  in telegrams, page 2 it states:  "The British Columbia cypher, as Your Lordship  supposed, was taken away from the colony by Mr.  Musgrave and has been discovered amongst the  confidential correspondence which he lodged in  the archives of this office."  That simply follows the paths of the confidential  passages, which as we have seen were finally  destroyed.  59 is an Order in Council of the Dominion refusing  to release lands for settlement in the Railway,  British Columbia.  60 is release of the Crown fund to the province.  61 is a British Columbia acknowledge --  acknowledges a British Columbia request.  The document  itself is from Mr. Howe, dated March the 7th, 1873,  addressed to the Lieutenant Governor of British  Columbia.  "I have the honour to acknowledge the receipt of  your despatch of the 12th ultimo, covering and  submitting for the consideration of the  Governor General a copy of a minute of your  Executive Council on the subject of address to  you from the Legislative Assembly of British  Columbia  ... requesting you to recommend to  the Government of the Dominion the passage of  an act of the Parliament of Canada legalizing  all sales of land in that province since 1870."  62 is an Order in Council of --  THE COURT: I'm sorry, "Your despatch and its ..."  MR. GOLDIE:  "Your despatch and ..."  THE COURT: "Enclosures"?  MR. GOLDIE:  Yes.  It's an explanatory memorandum.  I'm sorry.  THE COURT: "And its enclosure will be submitted for the  ..."  MR. GOLDIE:  "Consideration of His Excellency's Council." 22465  Documents read in  by Mr. Goldie  1 THE COURT:  Thank you.  2 MR. GOLDIE:  And the next document is that consideration.  And  3 it is an Order in Council of the government -- of the  4 Dominion, and attached to one of its enclosures is a  5 memorandum from the deputy minister, Mr. Bernard.  6 THE COURT:  This is not an Order in Council.  7 MR. GOLDIE:  Not the document — that document, My Lord.  I  8 think the Order in Council, if I am -- no, I beg your  9 pardon.  It is a memorandum to -- I think which was  10 sent to Sir John A. MacDonald by the Deputy Minister  11 of Justice.  That doesn't appear in the document  12 itself, except that it is signed by H. Bernard,  13 D.M.J., and following it is a document headed "memo  14 for Sir John".  15 THE COURT:  Yes.  16 MR. GOLDIE:  Mr. Bernard states:  17  18 "A singular question may arise as to the effect  19 of the 11th section of the Terms of Union of  20 British Columbia."  21  22 And then he quotes Term 11:  23  24 "That until the commencement within two years as  25 aforesaid from the date of the of the Union, of  26 the construction of the railway, the government  27 B.C. shall not sell or alienate any further  28 portions of the public lands of B.C."  29  30 Et cetera.  31  32 "Does not this imply that the lands must be  33 chosen for the railway route prior to 20 July  34 1873, and that the restriction of sale of B.C.  35 lands by local B.C. government ceases at that  36 date.  H.B."  37  38 And the next is Sir John A. MacDonald's memorandum  39 of October the 6th, 1873.  It looks like 1870, but  40 it's 1873.  And it is with respect to the request of  41 British Columbia that the lands be released.  And the  42 last paragraph after describing the request says:  43  44 "As the two years within which the government of  45 British Columbia were, by the terms of the  46 union of that province with Canada, prevented  47 from making any conveyance of land, have 22466  Documents read in  by Mr. Goldie  1 expired, there does not seem to be anything now  2 to prevent that government in granting  3 conveyances to parties who have purchased lands  4 since the 1st June 1870.  It is therefore  5 unnecessary to submit any measure of the  6 Parliament of Canada for that purpose.  All  7 which is respectfully submitted.  John A.  8 MacDonald."  9  10 That -- he went out of office about a month after  11 that, November, 1873.  12 64 -- well, it's such a poor copy, My Lord, I will  13 have to make a note of that.  14 THE COURT:  Yes.  15 MR. GOLDIE:  65 is the Land Act of 1874 of British Columbia,  16 which repealed the Land Ordinance of 1870 and the Land  17 Ordinance Amendment Act to 1873, and that was the Act  18 which was disallowed by the Dominion Government.  19 THE COURT:  This one or the other one?  20 MR. GOLDIE:  This one.  That has been referred to in evidence,  21 and further reference will be made to it.  22 Under tabs 66 and 67, and I won't dwell upon  23 these, is firstly an Act to amend the Dominion Lands  24 Act.  And I should say at this point, My Lord, in  25 reference to a number of these documents, these are  26 date -- these amendments were amendments assented to  27 on the 26th of May, 1874, as was the document under --  2 8 the Act under tab 67.  An Act to provide for the  29 construction of the Canadian Pacific Railway.  These  30 were part of a series of Orders in Council and Acts  31 which -- under which the MacKenzie administration  32 sought to resolve the dispute between British Columbia  33 and Canada over the failure of Canada to commence the  34 railway to British Columbia in a timely way.  35 Now, a number of these items would be dealt with  36 in the counter-claim.  They are in here to provide the  37 sequence that I mentioned at the outset.  38 68 is the British Columbia Land Act of 1875, which  39 was allowed to operate according to its terms,  40 although it had very little difference between that  41 and the one of 1874.  But intervening was the  42 agreement on the part of British Columbia and Canada  43 to establish the Indian Reserve Commission.  44 69 is another excerpt from the Dominion statutes,  45 an Act to amend and consolidate the Acts relating to  46 the public lands of the Dominion.  47 70 is an Act respecting the Canadian Pacific 22467  Documents read in  by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Railway assented to February 15th, 1851, and I have no  comment on that at this point.  71, the Order in Council which -- and by this time  Sir John A. MacDonald was back in office, and this  Order in Council authorized the issuance of letters  patent incorporating the Canadian Pacific Railway, and  they were attached.  And then 72 is the Order in Council of the 23rd of  June, 1883, providing for the visit to British  Columbia of a senior cabinet minister, Sir Alexander  Campbell, in order to discuss with the government of  that province all the matters of interest to the two.  And on page 4, the number being at the lower  right-hand corner, at the bottom of page 3:  "Sir John MacDonald further recommends ...".  THE COURT:  MR. GOLDIE:  Yes.  "... that advantage be taken of Sir Alexander  Campbell's visit to obtain his examination into  all matters of importance relating to the  Indians of British Columbia, the organization  of the Indian department and agencies there,  and the best means of improving their condition  both on the island and on the mainland, and  that he be instructed to report thereon for the  information of Your Excellency."  His report will be referred to in the  counter-claim.  74 is -- this is a Dominion Act to make further  provision respecting the administration of public  lands of Canada in British Columbia.  And again I  can't go through these in any detail in a short period  of time, but there were changes made to the Dominion  Land Act in respect of its application to Dominion  lands within British Columbia, and some of these  changes had direct reference to the negotiations of  treaties.  Then 76 is the Dominion Act relating to the  disposition of lands granted by British Columbia to  the Dominion and to the railway under the -- for the  purpose of facilitating the construction of the  Dominion -- of the Canadian Pacific.  77 is an Order in Council of the 5th of June, 2246?  Documents read in  by Mr. Goldie  1 1905.  I'm sorry, not the -- that's not the date of  2 the Order in Council.  It's June the 9th, 1905:  3  4 "On a report of the 5th of June, 1905 from the  5 Superintendent of General of Indian Affairs,  6 submitting that an agreement was entered into  7 between the government of Canada of the  8 Dominion of Canada represented by the Hon. Mr.  9 Daly and the government of the province of  10 Ontario, represented by the Honourable John M.  11 Gibson, dated the 16th day of April, 1894, in  12 pursuance of the Statute of Canada passed in  13 the fifty-fourth and fifty-fifth year of Her  14 Majesty's reign Chaptered 5 and instituted an  15 Act for the settlement of certain questions  16 between the Governments of Canada and Ontario  17 respecting Indian lands."  18  19 And the agreement is referred to again on page 2.  20 And in the second paragraph it states:  21  22 "The minister states that it has now become  23 necessary to obtain extinction of the Indian  24 title to certain portions of the said province  25 hereinafter mentioned and described in order to  26 maintain the friendly relations which is  27 existed between the government of Canada and  28 the Indian tribes and to promote quiet  29 settlement and colonization, and to forward the  30 construction of railroads and highways within  31 the northern part of the province of Ontario,  32 and it is expedient that negotiations should be  33 had with the Indians inhabiting these  34 territories for the cession of all their right  35 and title thereto."  36  37 And then, My Lord, there is under tab 78, there is  38 another Act dealing with Dominion Lands Act.  39 Under 79 is an Order in Council of December 11th,  40 1909, dealing with the adhesion of a band of Indians  41 to Treaty 8.  42 And then under tab 8 0 are the terms under which  43 Canada proposes to agree to the extension of the  44 boundaries of Quebec and Ontario.  And on the second  45 page Your Lordship will see under the heading  46 "Manitoba":  47 22469  Documents read in  by Mr. Goldie  1 "As by the terms of the resolution the Province  2 of Manitoba is not to enjoy the public lands as  3 a source of revenue the extinction of the  4 Indian interest therein devolves upon the  5 Government of Canada and has already been  6 arranged for."  7  8 And then it goes on to discuss the -- what is to  9 be added to the lands of both Ontario and Quebec.  And  10 then with respect to Quebec on the next page, the last  11 paragraph:  12  13 "When the English occupation began in 1759 it  14 was found that certain arrangements had been  15 made with various tribes by the french  16 administrators and the Proclamation of 1763 by  17 Sir William Johnson protected the Indians in  18 the enjoyment of their reserved lands.  The  19 Indian estate consisted at that time of certain  20 fixed reserves which were administered for the  21 benefit of the Indians, but there had never  22 been any system of payment of annuities; annual  23 presents were subsequently issued by the  24 British Government but they were gradulaly  25 reduced and finally withdrawn.  It was not  26 until the year 1851 that any steps were taken  27 by the province of lower Canada to further  28 recognize Indian claims or to provide any  29 additional land for Indians, and when the  30 action was taken it was not intended as a  31 recognition of any unceded title in the  32 provincial lands but rather sprang from motives  33 of compassion."  34  35 And then at the last paragraph, but one of the  36 Order in Council:  37  38 "The minister recommends that the provinces be  39 advised of the need that exists for definite  40 pre-arrangement as regards the Indian title  41 before the extension of boundaries and that the  42 session by the Indians should be made by formal  43 treaties upon the above-mentioned terms and  44 conditions."  45  4 6 And 81 is a memorandum recording the complaint of  47              the Province of Quebec to the terms of that Order in 22470  Documents read in  by Mr. Goldie  1 Council, and this Order in Council under tab 81 in  2 effect rejects that complaint.  3 And then under 82 and 83 is legislation assented  4 to in 1912 under which the boundaries of those two  5 provinces were extended.  And Your Lordship will see  6 in taking the Ontario Act under tab 2 -- tab 82, I  7 should say, on page 2 of clause 2A, that the  8 province -- what is being done here is that lands  9 under Dominion control are being added to the  10 provinces, and that they are being done so under the  11 following terms and conditions, and subject to  12 following provisions.  13  14 "A) That the province of Ontario will recognize  15 the rights of the Indian inhabitants in the  16 territory above described to the same extent  17 and will obtain surrenders of such rights in  18 the same manner, as the Government of Canada  19 has heretofore recognized such rights and has  20 obtained surrender thereof, and the said  21 province shall bear and satisfy all charges and  22 expenditure in connection with or arising out  23 of such surrenders;  24 B) that no such surrender shall be made or  25 obtained except with the approval of the  26 Governor and Council of Canada that the  27 trusteeship of the Indians in the said  28 territory, and the management of any lands now  29 or hereafter reserved for their use, shall  30 remain in the government of Canada subject to  31 the control of Parliament."  32  33 I add, My Lord, that if one compares that language  34 to Term 13, the common words are trusteeship of the  35 Indians and the management of lands.  36 And then finally:  37  38 "The Act does not come into effect except by  39 proclamation, which will not be made until  40 after the legislature of Ontario has consented  41 to the increase in limits."  42  43 And the same thing is done with respect to the  44 Province of Quebec.  45 My Lord, that completes volume 2 of the documents  4 6 Terms of Union.  I next submit a single volume  47 entitled Provincial General Documents. 22471  Documents read in  by Mr. Goldie  1 THE COURT:  All right.  That will be Exhibit 1202.  2 MR. GOLDIE:  1202.  Thank you, My Lord.  3  4 (EXHIBIT 12 02 - VOLUME OF DOCUMENTS ENTITLED  5 "PROVINCIAL GENERAL DOCUMENTS")  6  7 MR. GUENTHER:  My Lord, I have some reservation about some of  8 the documents included in this, and perhaps I should  9 say, there is a set of documents indexed under the  10 Roman numeral II at page 7 of the index that arise or  11 identified as being documents identified by J.V. Boys  12 and otherwise admissible.  Mr. Boys was -- is or was a  13 federal witness who was commissioned, and certainly  14 there was a reference in the cross-examination of Mr.  15 Boys by Mr. Mackenzie for the province of these  16 documents.  I would ask whether my learned friend  17 might indicate what the words "otherwise admissible"  18 indicate in the index, because short of other  19 admissibility, our position would be that it's  20 premature to exhibit documents arising or identified  21 in the commission that has not yet been tendered.  22 MR. GOLDIE:  Yes, My Lord.  My understanding is that the  23 plaintiffs will object to Mr. Mackenzie's  24 cross-examination of Mr. Boys, in the course of which  25 a number of documents were put to him and identified  26 or otherwise commented on by him.  I do not wish to  27 wait until that commission is tendered.  I am  28 tendering the documents but not the evidence, of  29 course, on the basis that by virtue of either their  30 age or their origin they are admissible.  31 I can deal with them when I come to Part II, but  32 that basically is the position that I am taking.  So  33 that in the event that the plaintiffs' objection is  34 upheld, those documents which are intended to form  35 part of the Province's case are not lost sight of.  36 THE COURT:  They are only 30 years old, are they?  37 MR. GOLDIE:  Not all of them, My Lord.  A number of them  38 consist, I believe, of reports, which would come under  39 the business records.  But most of them are over 30  40 years of age, because of the period in which Mr. Boys  41 was an official, an Indian agent.  42 THE COURT:  Uh-huh.  Is there a middle ground where they may be  43 admissible against the federal government on the  44 counter-claim, but not admissible against the  45 plaintiffs?  46 MR. GOLDIE:  There could well be, but I am tendering them in the  47 case at large. 22472  Documents read in  by Mr. Goldie  1 THE COURT:  Yes.  All right.  Well, I am at two minds at the  2 moment, and I think it might be best if you deal with  3 it again when you get to them, Mr. Goldie.  4 MR. GOLDIE:  All right.  Thank you, My Lord.  This document  5 which I tender as Exhibit 1202, subject to Mr.  6 Guenther's objection with respect to those documents  7 under tab Roman II, which include tabs 82 to 103, is  8 as the name implies, a miscellaneous collection.  I  9 don't propose spending very much time.  It's difficult  10 to categorize all of them, but they include additional  11 reports of Mr. Loring, reports of the R.C.M.P.,  12 correspondence between the Secretary of the Department  13 of Indian Affairs, additional documents relating to  14 petitions, but that is as much as I can generalize.  15 And going onto the documents themselves.  Under  16 section 1, tab 1 is the frontispiece of a book  17 published by J.D. Pemberton, who is the  18 Surveyor-General of Vancouver Island, and title being  19 "Facts and Figures relating to Vancouver Island of  20 British Columbia Showing What to Expect and How to Get  21 There" with illustratiave maps, London, 1860.  And I  22 have put in this map that Mr. Pemberton had in his  23 book, which is of interest, My Lord, because it shows  24 Major Downie's track.  That was the track that Downie  25 took after being instructed by Douglas to look for a  26 new way of getting into the fields.  And it also shows  27 Simpson, and in this case the cartographers identified  28 it as Simpson or Babine River.  29 THE COURT:  Doesn't it say Simpson or Babine, Bear River?  30 MR. GOLDIE:  There is an "R" after "Babine", and then further up  31 there is "Bear".  Now it all looks to be the same  32 river.  33 THE COURT: Yes.  34 MR. GOLDIE:  But be that as it may, it is of interest as being  35 in the short inter-regular number between the  36 continued use of Simpsons and the proper  37 identification of the Skeena.  38 THE COURT:  I think I should reject this.  Francois Lake's far  39 too small.  40 MR. GOLDIE:  Certainly in relation to Babine Lake.  41 THE COURT:  All right.  42 MR. GOLDIE:  Tab 2 is Sir John A. MacDonald's private letter to  43 Mr. Trutch of October 27th, 1871, in which he gives  44 some -- I'll call it constitutional advice to Trutch,  45 and makes reference to the state of the law in British  46 Columbia at that time.  47 Tab 3, "Journals of the Legislative Assembly of 22473  Documents read in  by Mr. Goldie  1 the Province of British Columbia" for 1876.  It is the  2 laying before the legislature of the papers connected  3 with the Indian land question, 1850 to 1875, which is  4 now Exhibit 1183.  5 And tab 4.  6 THE COURT:  Is now Exhibit 1183?  7 MR. GOLDIE:  Yes.  It's the so-called yellow book, My Lord.  8 And tab 4 is the laying before the legislature of  9 the additional reports, which is annexed to the papers  10 and form part of 1183.  11 Tab 5 is an Order in Council of March the 3rd,  12 1878, dealing with the reduction of the Indian Reserve  13 Commission to one.  14 Tab 6 is the replacement of O'Reilly by -- for  15 Sproat as the Indian Reserve Commissioner.  16 Tab 7 deals with the same matter.  17 Tab 8 is the Dominion Order in Council of 1889,  18 and appointing a number of Dominion officials.  If  19 Your Lordship would turn to the second to last page,  20 it is the appointment of Loring as Indian Agent for  21 the district known as Babine, which includes the Upper  22 Skeena River:  23  24 "And with jurisdiction as far as offences  25 against the Indian Act are concerned from the  26 120th degree of longitude westward to the Coast  27 and between the 53rd and 60th degrees of  28 latititude provision having been made."  29  30 At tab 9 is the B.C. request that the potlatch law  31 be reviewed, and if possible repealed.  That's of  32 1897.  33 Tab 10 deals with that from the Dominion  34 standpoint, as does tab 11.  35 Tab 12 is the Order in Council again dealing with  36 that.  I'm sorry, that was tab 11.  Tab 12 is a  37 request from the people of Kitwanga to Vowell of 1905  38 that the inhabitants of Andimahl keep away from them.  39 Tab 13 is the Secretary of the Department of  40 Indian Affairs, Mr. McLean I think it is.  Yes, Mr.  41 McLean responding to a request for the copy of any  42 treaty between the British or Dominion Governments and  43 the Okanagan Indians, and explaining that there are no  44 treaties, and the circumstances under which that came  45 about.  46 14 is a telegram with respect to the 1909  47 troubles, which I don't believe has been in any 22474  Documents read in  by Mr. Goldie  1 evidence so far.  2 15 is the same.  3 16 is the -- there is a typed script following it.  4 It is after the Stewart Vowell Commission of -- or  5 inquiry of September 8th, 1909.  A letter from the  6 Deputy Superintendent of General to Mr. Vowell, asking  7 him to inform the Indians that the department has not  8 lost sight of their claims, but they must not take the  9 laws into their own hands.  10 17 is the -- is the Secretary's letter to Vowell  11 of 1909, telling him to be on his guard with respect  12 to any Indian troubles.  13 18 is a Loring report.  14 19 is enclosing copies of material relating to the  15 1909 troubles.  16 20 relates to the disposession of Indians by white  17 settlers as the Secretary of the Department of Indian  18 Affairs to the Indian Commissioner in British  19 Columbia, Indian Superintendent.  20 21 is a Loring report.  21 22 is a pamphlet dealing with the Indian land  22 claims put out by friends of the natives, and in  23 respect of which a large part was drafted by a Mr.  2 4 Omera (?).  25 24 -- 23, I'm sorry, asking for a copy of the  26 instructions which this office has sent out to Indian  27 Agents.  And there is about three or four pages in,  28 there is a document headed -- four pages in,  29 "Instructions to Indian Agents".  And these are the  30 instructions which give rise to the monthly reports of  31 the Indian Agents.  At the bottom of the page we find  32 the statement:  33  34 "As the department has no treaty payments to  35 make to the Indians of British Columbia and it  36 proposes doing away entirely with the system of  37 giving presents to them, there will be little  38 other responsibilities attaching to the  39 position of Indian Agent than the ordinary care  40 of the interests of the Indians, and their  41 protection from wrongs at the hands of those of  42 other nationalties."  43  44 24 is a Loring report.  45 25 is from the people of Kitwancool.  46 26, to the Prime Minister from the Secretary of  47 the Department of Indian Affairs dealing with the same 22475  Documents read in  by Mr. Goldie  1 matter.  2 A telegram under 27 deals with the same matter.  3 28 is a newspaper article dealing with the  4 protests which have been referred to.  5 29 is the greetings to the Governor General of the  6 representatives of the Kitsiguqula, Hazelton, Glen  7 Vowell, Kispayas, Kisgagas, Galdoah and so on tribes  8 of Indians from the Hazelton district.  9 30 is a "Memorial of The Conference of Friends of  10 the Indians of British Columbia" addressed to the  11 Governor General.  12 31 is "Powers and Functions of the Royal  13 Commission on Indian Affairs."  14 32 is a Loring report, as is 33, 34.  15 35 is a "Memorial of the Allied Tribes of British  16 Columbia" to the cabinet, presented on behalf of, and  17 number 4 is the Kispiox bands of the Kitishean tribe  18 of Indians inhabiting the upper valley of Skeena River  19 allied with the Nishga tribe.  20 36 is a Loring report.  21 37 is the first document from the colonial office  22 to the Government General, enclosing a paper from a  23 Mr. Pierce, the paper being dated March 10th, 1919,  24 and complaining about the fact that the Nishga and  25 their petition of 1913, seeking land which they  26 claimed belongs to them.  27 38 is a Loring report.  28 39 is a Loring report.  29 40 is Mr. Ditchburn, a letter to the Kitwancool of  30 the 1st of May, 1920, stating that the Indian title  31 question cannot be dealt with until the reserve  32 situation is clarified.  33 41 is a memorandum.  34 THE COURT:  This is from Ditchburn?  35 MR. GOLDIE:  Yes, it is, My Lord, addressed to — sent to Albert  36 Williams.  Ditchburn was the Chief Inspector of Indian  37 Agencies in the Province of British Columbia.  38 THE COURT:  That's a federal point?  39 MR. GOLDIE:  Yes, it is.  4 0 THE COURT:  Yes.  41 MR. GOLDIE:  41 is a memorandum to Sir James -- Senator Lougheed  42 from the Deputy Superintendent General, which was  43 Duncan Campbell Scott during a debate relating to Bill  44 13.  He says:  45  46 "The Hon. Senator Bostock in the debate on Bill  47 13, on Friday afternoon, mentioned a treaty 22476  Documents read in  by Mr. Goldie  1 having been made with certain Indians of  2 British Columbia.  The reference is to what is  3 known as Treaty No. 8 by which there was a  4 cession of the Indian title to a vast area of  5 land in the Peace River and Great Slave Lake  6 regions.  There was no agreement between the  7 Province and the Dominion, but an Order in  8 Council was passed on the 6th December 1898, by  9 His Excellency in Council which stated that it  10 was advisable to deal with these Indians as  11 they were allied with the indians of Athabasca  12 and would expect he same treatment."  13  14 42 is the first of a series of R.C.M.P. reports.  15 42 is the Kitwanga to Ditchburn of March 30th,  16 1923.  17 44 is an excerpt in the files of the Department of  18 Indian Affairs from a report of Mr. Hyde for January  19 1924.  20 45 is a document that Mr. Hyde has apparently  21 signed referring to a resolution of the trapline  22 dispute.  23 46 is Ditchburn to Williams of Kitwancool, again  24 in which he says:  25  26 "You apparently are mixing up the Indian Reserve  27 question with that of the Aboriginal Title,  28 which as I already informed you are two  29 distinctly separate ones."  30  31 47, "The Allied Tribes of British Columbia",  32 report of the R.C.M.P.  33 48 refers to a delegation that was to go to the  34 United Kingdom.  35 49 and 50 and 51 all deal with trapline disputes.  36 52 is an extract from an appropriate Act which  37 makes reference to a grant -- it's item 201 on the  38 first page, My Lord.  Makes reference to a grant of  39 $100,000 approved by Parliament in the session of  40 1926, '27.  That refers to the so-called B.C. Special  41 recommended by the Joint Committee, which found that  42 there was no evidence of Indian title in British  43 Columbia.  44 THE COURT:  I'm sorry, $100,000?  45 MR. GOLDIE:  If Your Lordship would —  46 THE COURT:  I see, the 3,873,000 —  47 MR. GOLDIE:  Yes.  It's in the text there. 22477  Documents read in  by Mr. Goldie  1 THE COURT:  Yes.  All right.  2 MR. GOLDIE:  The last item referred to in the text.  3 54 and from here on right straight through to 81  4 are documents which are either related to trapline  5 disputes, R.C.M.P. reports, appointments of chiefs and  6 councils, confiscation of a licence held by Thomas  7 Seymour George, the minutes of bands, and I need not  8 deal with these in any detail at all.  9 My Lord, that brings me to Section 2, and Your  10 Lordship will see that these documents were all  11 identified by Mr. Boys, which in my submission makes  12 them admissible.  But in addition to that, they  13 constitute documents which are more than 30 years of  14 age, and are certainly in part business records.  That  15 is clearly evidence from the first one, 82.  83 is --  16 THE COURT:  Well, I think I better deal with this problem.  Is  17 there any doubt that Mr. Boys' evidence is going to be  18 introduced?  19 MR. FREY: It will be, My Lord.  20 THE COURT:  Do you know, Mr. Guenther, if it's likely to be the  21 subject of any objections after admissibility?  22 MR. GUENTHER:  Not as to the evidence in chief, nor  23 cross-examination by Mr. Rush, but there is an issue  24 as to whether the cross-examination on the part of the  25 province by Mr. Willms should be admitted at all.  2 6 THE COURT: Those where these documents came from. Well, I  27 think I ought to admit them, subject to that  2 8 objection, and deal with them when the time comes.  29 MR. GOLDIE:  I don't propose to make any further reference to  30 them, My Lord.  31 That brings me to the defence and the  32 counter-claim, which consists of some thirteen  33 volumes.  34 THE COURT:  Oh, good.  35 MR. GOLDIE:  I have arranged the index in a way which I hope  36 will make it unnecessary for me to make any extensive  37 references to these documents.  38 THE COURT:  Just a moment, please, Mr. Goldie.  We are going to  39 be changing reporters between now and 2:40.  We have  40 been going an hour.  How much longer will you be, Mr.  41 Goldie?  42 MR. GOLDIE:  Another ten minutes or so, My Lord.  I am not going  43 to read documents.  I am going to refer Your Lordship  44 to the index, which is explanatory of the documents,  45 so that I hope to obviate --  46 THE COURT:  Well, I think we will just carry on, then.  We may  47 stop for a moment when the other reporter arrives. 2247?  Documents read in  by Mr. Goldie  1 MR. GOLDIE:  Could there be placed before His Lordship one of  2 these volumes.  It doesn't matter which one.  The same  3 index is in each volume.  I am tendering these -- they  4 are identified as defence and counter-claim, volumes 1  5 to 13.  Which is the number Your Lordship has?  6 THE COURT:  I have volume 8.  7 MR. GOLDIE:  Fine.  I'll take the same one.  It's here.  8 THE COURT:  Why don't we just take a moment.  I'll just go and  9 stretch in the hall.  I'll be waiting outside, and  10 arrange ourselves here.  11 THE REGISTRAR:  Order in court.  Court stands adjourned.  12  13 I HEREBY CERTIFY THE FOREGOING TO  14 BE A TRUE AND ACCURATE TRANSCRIPT  15 OF THE PROCEEDINGS HEREIN TO THE  16 BEST OF MY SKILL AND ABILITY.  17  18  19 LORI OXLEY  2 0 OFFICIAL REPORTER  21 UNITED REPORTING SERVICE LTD.  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 22479  Documents read in  by Mr. Goldie  1 (PROCEEDINGS RECONVENED AT 2:30 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  All right.  Mr. Goldie.  5 MR. GOLDIE:  My lord, the organization of these documents is  6 arranged in sections identified by pink tabs with  7 Roman numerals.  There are -- there is a general index  8 and there is a particular index in the front of each  9 volume.  The general index runs to three pages and it  10 provides you with the topic dealt with in each  11 section.  And if I can just refer to the first page,  12 the first section, the topic is:  13  14 Awareness of Canada and the Colonial Office of  15 Indian Title prior to union of Canada and  16 British Columbia.  17  18 Under that tab I will be found 17 documents each  19 identified by a separate tab.  2 0 THE COURT:  Yes.  21 MR. GOLDIE:  These are all found in volume 1.  22 THE COURT:  Yes.  23 MR. GOLDIE:  Now, in respect of the volume which your lordship  24 has in front of you, number eight, that contains part  25 of tab VIII, namely, tabs 14 to 16 of section VIII.  I  26 shouldn't say tab 8.  Section VIII.  And then  27 commences Section IX which are:  28  29 Selected documents relating to the Royal  30 Commission and Privy Council Order 751:  31 1913-1922.  32  33 There are 32 separate tabs under that, found in all,  34 and that's the balance of volume 8.  35 Now my lord, I am just going to now refer to each  36 of the topics and without -- it may be necessary to  37 refer to one or two of the documents, but I hope not,  38 and then I am going to tender these 13 volumes as a  39 single exhibit.  The next number would be?  40 THE REGISTRAR:  1203.  41 MR. GOLDIE:  1203, with a separate number for each volume, and  42 the documents to be regarded as exhibits.  43 THE COURT:  There is 13 volumes?  44 MR. GOLDIE:  Thirteen volumes, yes, my lord.  45 THE COURT:  And they won't be Roman numerals because the --  46 MR. GOLDIE:  No, no, they are not Roman numerals.  47 THE COURT:  Volumes 1 to 13. 22480  Documents read in  by Mr. Goldie  1 MR. GOLDIE:  Yes.  2 THE COURT:  Subdivided into how many sections?  3 MR. GOLDIE:  Fifteen sections, and —  4 THE COURT:  Further subdivided by tabs?  5 MR. GOLDIE:  — further subdivided by tabs.  6 THE COURT:  Now, are the tabs consecutively numbered?  7 MR. GOLDIE:  No, the tabs are consecutively numbered within each  8 topic, so that the first topic has tabs 1 to 17 within  9 that topic, the next one has tabs 1 to 10, and so on.  10 THE COURT:  Separately -- the tabs are separately numbered  11 consecutively within each Roman numeralled section?  12 MR. GOLDIE:  That is correct.  13 THE COURT:  Yes, all right.  I think we just doubled the number  14 of exhibits in this trial, didn't we, or close to it?  15 MR. GOLDIE:  I've been afraid to add them up, but I was just  16 going to -- for ease of identification, Section I  17 deals with, as I've said:  18  19 Awareness of Canada and Colonial Office of  20 Indian Title prior to union of Canada and  21 British Columbia.  22  23 And there are 17 tabs or documents under that section.  24 Section II:  25  26 Selected documents respecting Indian land  27 matters from [the] date of Union --  28  29 That is to say, the date of union of British Columbia  30 and Canada.  31  32 -- to the end of Sir John A. Macdonald's first  33 administration.  34  35 Oh, I beg your pardon.  The date of union here is  36 confederation of the four old provinces of Canada.  37 "July 1st, 1867 to November 5th, 1873".  38 Section III consists of:  39  40 Selected documents respecting Indian land  41 matters in British Columbia during Alexander  42 Mackenzie's administration:  November 7, 1873  43 to October 8, 1878, including disallowance of  44 [the] 1874 British Columbia Land Act and [the]  45 establishment of [the] Indian Reserve  46 Commission.  47 22481  Documents read in  by Mr. Goldie  1  2  THE  COURT:  3  4  MR.  GOLDIE  5  THE  COURT:  6  1  7  8  MR.  GOLDIE  9  THE  COURT:  10  MR.  GOLDIE  11  12  13  14  15  16  17  18  19  20  21  22  23  THE  COURT:  24  1  25  26  MR.  GOLDIE  27  28  THE  COURT:  29  MR.  GOLDIE  30  THE  COURT:  31  32  33  34  MR.  GOLDIE  35  36  37  38  39  THE  COURT:  40  MR.  GOLDIE  41  42  43  THE  COURT:  44  45  MR.  GOLDIE  46  THE  COURT:  47  MR.  GOLDIE  Section IV --  I take it all these documents in this series, then,  are post-confederation?  :  From this point on, yes.  Oh yes, prior to -- number one is prior to union of  Canada and British Columbia, yes, all right.  From  Roman III on, yes, all right.  :  And part of the ones in Roman II.  Yes, right.  :  And then IV:  Selected documents respecting Indian land  matters in British Columbia during the second  administration of Sir John A. Macdonald:  October 17, 1878 to June 6, 1891.  Five:  Other documents relating to Indian land claims,  including further documents relating to [the]  Metlakatla disputes:  1883 to 1895.  Now Mr. Goldie, may I inquire, would these  duplicate, in some cases, documents that are already  in other exhibits?  :  In some cases, yes.  And I can provide a list which  will identify those.  A table of concordance or --  :  Something of that order, yes.  All right.  I'm just thinking, if I decided, "Well,  I want to look at the Metlakatla dispute," I couldn't  use this as a comprehensive index of everything  related to Metlakatla?  :  No.  But I have intended to put in here as  comprehensive a collection with respect to Metlakatla  as we can find, because a number of the Metlakatla  exhibits are bits and pieces, if I may put it that  way.  Yeah.  :  But your lordship will see that those documents  which run from tabs 1 to 70 in that section, take up  volumes 4, 5 and 6.  Yes, I see.  And there may be something still left  out that appears -- that appears in other exhibits.  :  It may be, but I hope not.  Yes, all right.  :  There will be in here, there will be found other 22482  Documents read in  by Mr. Goldie  1 exhibits, but I hope that I have not missed any  2 relating to the Metlakatla matter elsewhere.  3 THE COURT:  Yes.  4 MR. GOLDIE:  The next section, topic VI, is, "Selected documents  5 relating to Treaty 8."  6 Section VII, "Dominion Lands Act amendments: 1906  7 to 1908.  8 Topic VIII:  9  10 Selected documents in the period 1906 to 1912  11 relating to the establishment of the Royal  12 Commission on Indian Affairs for British  13 Columbia, the adoption of Dominion Order in  14 Council 1081 of 1911, and [the] events  15 preceding Dominion Order in Council 751 of  16 1914.  17  18 My lord, the Dominion Order in Council of 1081  19 has been referred to as the Order in Council 751, but  20 so far as I am aware, the attachments to the orders in  21 council have not been collected together in one place.  22 Selected -- next topic:  23  24 Selected documents relating to the Royal  25 Commission and P.C. 751.  26  27 As your lordship will recall, 751 was the Order in  28 Council passed by the Dominion providing for a  29 reference to the courts on Indian title.  30 Section X:  31  32 Selected documents relating to Canada's attempt  33 to negotiate a treaty and to Indian opposition  34 to adoption of [the] Report of the Royal  35 Commission:  1922 to 1923.  36  37 Now, the -- there is a very long transcript of  38 meetings in Vancouver between the -- between Mr.  39 Stewart who was -- who I think his title was at that  40 time Minister of the Interior, but at any rate, the  41 Department of Indian Affairs came under his  42 jurisdiction.  There was a very long meeting with him  43 and then there was a meeting again with his deputy in  44 which the question of what would be required to  45 persuade the Indians of British Columbia to enter into  46 a treaty.  The transcript of that, which is not  47 entirely legible -- we have ordered another copy, and 22483  Documents read in  by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  when I get it I will be replacing it. It takes up a  substantial part of one of these volumes.  THE COURT:  Looks like volume 12, is it?  MR. GOLDIE:  I think it's —  THE COURT:  Looks like one tab anyway.  MR. GOLDIE: Yes, yes. It's either tab 23 of 11, or 14 of 12.  I forget which.  THE COURT:  Yes, right.  MR. GOLDIE:  Second — number — topic XI:  Selected documents relating to aftermath of  unsuccessful treaty negotiations and continuing  Indian opposition to adoption of [the] Report  of the Royal Commission: October 29, 1923 to  July 19, 1924.  And your lordship will see there is  the periods  of time are quite short, but there is a good deal of  activity going on at that time.  And the adoption --  the opposition to the adoption of the report is  opposition to the Dominion's adoption of the report.  Topic XII:  Selected documents relating to events  subsequent to Dominion Order in Council 1265 of  1924 including Petition of Allied Tribes to  Parliament of 1926; appointment of Joint  Committee of the House of Commons and the  Senate, report of Committee and adoption by  Parliament:  1924-1927.  Then topic XIII:  Selected documents relating to matters  following adoption of [the] Joint Committee's  Report, including transfer of Indian reserves  from British Columbia to Canada:  1927-1981.  Topic XIV:  Selected documents relating to Canada's  Constitutional relationship with Indians:  1867-1928.  And then topic XV is:  Appendix:  Appendices to the Report of Mr. 22484  Documents read in  by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  Scott of July 14, 1925.  Now, that report was one made by Mr. Scott who was  the Deputy Superintendent General of Indian Affairs to  his superior, the Minister of the day, who I think was  Mr. Stewart, in which he attempts to recapitulate all  the matters which preceded the Royal Commission, the  result of the Royal Commission, the attempts to  negotiate a treaty, and his final recommendation.  And that, my lord, constitutes the documents  volumes 1 to 13, and I tender that in the manner that  I have described, which would be Exhibit 1203-1 for  each volume.  :  Yes.  (EXHIBIT 1203-1 - Defence and Counterclaim Vol.  (EXHIBIT 1203-2 - Defence and Counterclaim Vol.  (EXHIBIT 1203-3 - Defence and Counterclaim Vol.  (EXHIBIT 1203-4 - Defence and Counterclaim Vol.  (EXHIBIT 1203-5 - Defence and Counterclaim Vol.  (EXHIBIT 1203-6 - Defence and Counterclaim Vol.  (EXHIBIT 1203-7 - Defence and Counterclaim Vol.  (EXHIBIT 1203-8 - Defence and Counterclaim Vol.  (EXHIBIT 1203-9 - Defence and Counterclaim Vol.  (EXHIBIT 1203-10 - Defence and Counterclaim Vol.  (EXHIBIT 1203-11 - Defence and Counterclaim Vol.  (EXHIBIT 1203-12 - Defence and Counterclaim Vol.  (EXHIBIT 1203-13 - Defence and Counterclaim Vol.  1)  2)  3)  4)  5)  6)  7)  8)  9)  10)  11)  12)  13)  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT:  Mr. Goldie, somewhere you said in your response to  Mr. Rush's opening that there was -- there was an  Order in Council that said that British Columbia had  discharged its obligations under the terms of union.  GOLDIE:  Yeah.  COURT:  When you said it I wondered if we would ever get to  it.  Is it in here?  GOLDIE:  It is in here, yes, my lord.  It's -- it is, in  fact, I think it's -- I think it's twelve, sixty-five.  I'll look up the --  COURT:  Well, it doesn't matter.  GOLDIE:  Following this general index -- and I'm not going  to read this -- is the index which describes every  document.  COURT:  Oh yes, I see.  GOLDIE:  And I think I can find —  COURT:  And they are in chronological order, are they not?  GOLDIE:  No, they are in the order in which they are found 22485  Documents read in  by Mr. Goldie  1  2  THE  COURT:  3  MR.  GOLDIE  4  5  THE  COURT:  6  7  8  MR.  GOLDIE  9  10  THE  COURT:  11  MR.  GOLDIE  12  13  14  THE  COURT:  15  16  MR.  GOLDIE  17  THE  COURT:  18  MR.  GOLDIE  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  1  37  38  39  40  41  42  43  THE  COURT:  44  MR.  GOLDIE  45  THE  COURT:  46  MR.  GOLDIE  47  THE  COURT:  under each tab, under each section.  They look like --  :  Some of them are because the sections are broadly  chronological.  Now let me see.  I don't think you need -- I don't really want to  look at it.  It's just something that I had been sort  of wondering when it was going to arrive.  :  Yes.  Well, it's arisen even if it's disguised at  this point.  All right.  That's fine.  :  Well, I'll find that, my lord, and identify it for  you.  But the only other matter that I wish to deal  with right now is --  Well let me just finish.  Has Madam Registrar got  the 13 volumes?  :  Yes, she has.  All right.  Thank you.  :  The next item that I wish to deal with, my lord, is  a volume entitled "Report of the Royal Commission on  Indian Affairs for the Province of British Columbia -  Extracts."  And this has been put together for the  purpose of picking up from the four volumes of the  report those parts which deal with the Babine Agency  and the Stuart Lake Agency which covered the land  claims area, and with those parts of the general  report which would appear to be -- have some relevance  to the present land claims area.  Your lordship will see that the -- under tab 1 is  the face page of the report itself, then under tab 2  your lordship will see that it begins with general  report, interim reports, progress reports, Indian  Reserves in British Columbia, 1916 summary, and then  the Babine agency, the Bella Coola Agency with which  we are not concerned, Cowichan, Kamloops, Kootenays,  Kwawkewlth, Lytton, Naas, New Westminster, Okanagan,  Queen Charlotte, Stikine, Stuart Lake, and that is one  with which we are concerned.  So that we have under  tab 1 from volume 1, the interim reports, 21, 27, 90  and 94, the progress reports, the Indian reserves in  British Columbia, the summary, and the Babine agency,  all of it, consisting of pages 178 to 219 in the  original report.  And then the extracts from --  178 to?  :  Beg your pardon?  Oh yes, 178 to 219, that's Babine.  :  Yes, Babine.  Which are the agencies with which we are concerned? 22486  Documents read in  by Mr. Goldie  1 MR. GOLDIE:  Babine and Stuart Lake.  2 THE COURT:  And they are the only ones that are included here,  3 are they?  4 MR. GOLDIE:  Yes, yes.  And Stuart Lake is under tab 2.  5 THE COURT:  Yes, all right.  6 MR. GOLDIE:  And there is included in each the map which was  7 prepared by Mr. Green of the agency and where the  8 reserves are.  9 THE COURT:  All right.  Mark that as —  10 MR. GOLDIE:  Can that be tendered, my lord, as the next exhibit.  11 THE COURT:  1204.  12 THE REGISTRAR:  1204, yes.  13  14 (EXHIBIT 1204 - Report of the Royal Commisson on  15 Indian Affairs for the Province of B.C. - Extracts)  16  17 MR. GOLDIE:  And subject to my identifying for your lordship the  18 Order in Council I referred to in my opening, that  19 concludes the business that I proposed for this  20 afternoon.  21 THE COURT:  All right.  Thank you.  I understood we were going  22 to open Canada's defence a week from Monday.  23 MR. FREY:  Well, my lord, Mr. Macaulay has asked me to raise  24 that.  You may recall from yesterday, that there are a  25 number of odds and ends that are going to be dealt  26 with on that date.  Now the problem is that none of  27 those odds and ends are this defendant's.  2 8 THE COURT:  Yes.  29 MR. FREY:  I know that one of the matters is an outstanding list  30 of exhibits for identification for the Province, which  31 is very lengthy.  There is also discovery questions  32 and Mr. Rush has a list of other items, and frankly,  33 we don't know what they are.  34 THE COURT:  Yes.  35 MR. FREY:  And I'm really wondering whether there is any  36 possibility -- and Mr. Macaulay is wondering whether  37 there is any possibility that we will in fact open on  38 that date.  39 THE COURT:  I don't suppose you are able to help us in this, are  40 you, Mr. Guenther?  Or do you have any instruction?  41 MR. GUENTHER:  Not much, except I understand Mr. Rush indicated  42 part of what he was dealing with was an item that Mr.  43 Goldie was dealing with as well.  And I think that I  44 recall Mr. Goldie said that he wouldn't be here on the  45 20th, so I'm not sure how that does not fit in or  46 does.  47 THE COURT:  Yes.  But you are within a day of — except for 22487  Documents read in  by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE COURT  MR.  THE  FREY:  COURT  MR.  THE  MR.  THE  THE  housekeeping matters, which I'm sure is always going  to be with us -- close to closing your case, Mr.  Goldie?  GOLDIE:  Yes, that's correct, my lord.  It was intended to,  as far as possible, get over the bulk of the case.  COURT:  Yes, all right.  GOLDIE:  And that's done.  And there may be some documents  to be added, there may be some documents to be better  copies found.  Yes.  All right.  Well, I don't think we should  allow ourselves to become lazy and self-indulgent in  this matter, but I don't suppose a day -- part of a  day between the close of the defence of the Province  and the opening of Canada's defence would do anyone  any particular harm.  So I think Mr. Macaulay can  reasonably expect to open his defence on Tuesday week.  Thank you, my lord.  Are you able to assist us with any indication of how  long you think you might be?  Well, when we thought we had ten days as opposed to  eight, we were hopeful of completing in that time.  But now it's been cut down to eight and I don't know  if we can do it in that time.  But you are looking at something in the range of ten  days?  I am hoping so.  Subject to cross-examination, of course.  Yes, my lord.  All right.  Well then, thank you.  We will adjourn  until a week this coming Monday.  REGISTRAR:  Order in court.  This court stands adjourned  until Monday, October 20th, 1988, at 10:00 a.m.  (PROCEEDINGS ADJOURNED AT 3:00 P.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability.  Toni Kerekes, O.R.  United Reporting Service Ltd.  MR. FREY  THE COURT  FREY:  COURT  FREY:  COURT 224?  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Documents read in  by Mr. Goldie

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