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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-26] British Columbia. Supreme Court May 26, 1990

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 27468  Submission by Mr. Goldie  1 Vancouver, B.C.  2 May 2 6, 1990  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia this 26th day of May, 1990.  Delgamuukw  6 versus Her Majesty the Queen at bar, my lord.  7 THE COURT:  Mr. Goldie.  8 MR. GOLDIE:  My lord, I'm at page 90 of section 4 of part V.  9 THE COURT:  So am I.  10 MR. GOLDIE:  The part that is being dealt with here or the  11 submission that is being dealt with here relates to  12 the plaintiffs' interpretation of paragraph S of the  13 Royal Proclamation as reserving to the Indians all  14 lands in North America until such time as those lands  15 are ceded or sold, and the submission is that this  16 does not withstand a grammatical construction of the  17 interpretation of the preamble.  18 S, as your lordship will recall, reads as follows:  19  20 "And whereas it is just and reasonable, and  21 essential to our Interest, and the Security of  22 our Colonies, that the several Nations or  23 Tribes of Indians with whom We are connected,  24 and who live under our Protection, should not  25 be molested or disturbed in the Possession of  26 such Parts of Our Dominions and Territories as,  27 not having been ceded to or purchased by Us,  28 are reserved to them, or any of them, as their  2 9 Hunting Grounds."  30  31 I've already commented in some particular parts of  32 that.  33 Now turning to paragraph 243, there is in this  34 preamble no sense of grant.  It is, in fact, a  35 recital.  The words "are reserved to the said Indians,  36 or any of them" are words of reference and not of  37 reservation.  The expression refers to lands reserved  38 to the Indians as hunting grounds before October 7th,  39 1763 and to the justice and reasonableness of  40 protecting the Indians from being molested or  41 disturbed in their possession of those lands.  42 Accordingly, in my submission, the words "not having  43 been ceded to or purchased by us" refer to those lands  44 reserved to the Indians prior to the Royal  45 Proclamation, which continued to be reserved to them  46 because they had not yet been ceded to the Crown.  47 That paragraph S is a preamble, and not an 27469  Submission by Mr. Goldie  1 exercise of the prerogative power, is evident from an  2 examination of the expressions used in paragraphs T  3 through Y.  S, in fact, as is so obvious, begins with  4 the classic wording of a recital:  "And whereas..."  5 And if I may pause there, my lord, it is, in fact, one  6 of several recitals in the document itself.  The first  7 one is A:  "Whereas We have taken into Our Royal  8 Consideration," etcetera.  And there's another one at  9 the top of the third page, K:  "And whereas it will  10 greatly contribute..."  And R is introduced by the  11 words:  "And whereas..."  And then we come to S, which  12 is introduced in the same fashion.  13 There is, in my submission, nothing in S to  14 suggest that the King is exercising the royal  15 prerogative in what immediately follows.  And by way  16 of contrast, the King "declares" his will and pleasure  17 in paragraphs T, U, and V; "forbids" in paragraph W;  18 "enjoins and requires" in paragraphs X, Y, and AA;  19 "authorizes, enjoins, and requires" in paragraph Z.  20 All those are words of execution.  When I say  21 execution, I mean execution of the prerogative.  22 The interpretation of paragraph S to preserve the  23 status quo, that is, to recognize an interest in lands  24 in possession of the Indians in 1763, is consistent  25 with the recognition of interest in lands occupied and  26 in possession of Indians prior to that date.  The  27 British colonial practice of recognizing hunting  28 grounds for the Indians by way of treaties entered  29 into by or on behalf of the Crown and Indian tribes  30 was almost as old as the colonies themselves and, in  31 my submission, grew out of the warfare which was an  32 intermittent feature of settlement.  Some examples  33 include the treaty of 1646 entered into by the colony  34 of Virginia, the 1733 treaty between Georgia and the  35 Sachems, and the treaty between Georgia and the Upper  36 and Lower Creek Indians.  The land reserved in the  37 latter treaty was ceded back to the Crown by the Creek  38 Indians in June of 1758.  39 The only reference that I wish to refer to there  40 is Labaree's Royal Instructions, and I ask your  41 lordship to cross out the reference Special  42 Instructions for Georgia, 9 February 1759.  That's  43 245.  Labaree's work is one that was referred to on a  44 number of occasions by Dr. Greenwood, and at page 567  45 under tab 245 is the history of the lands ceded by the  46 Creeks.  And also following the blue binder is another  47 extract, at page 7 of the series under the tab, 27470  Submission by Mr. Goldie  1 another extract from Labaree, page 479, "No Settlement  2 Beyond Proclamation Line," and I read that.  And, in  3 my submission, these make it clear that the -- that  4 these support the grammatical construction of S, that  5 what is being referred to in S is the lands which they  6 have had reserved to them as of October 1763.  7 On paragraph 246, other examples of British and  8 colonial treaty reservations of Indian hunting grounds  9 which were in force as of October 7, 1763 are the  10 Cherokee-South Carolina treaty of 17 December 1761,  11 the Iroquois surrenders of 1701 and 1726, and the  12 treaty of Eatson, 1758.  13 And I refer there to Mr. Slattery under tab 246.  14 This is from his Ph.D. thesis.  And without going  15 through it, it provides your lordship with an example  16 of what, in my submission, gave rise to this preamble.  17 But I will refer to the first page under the facing  18 page, where midway down the page the paragraph  19 beginning with the words:  20  21 "A deed was accordingly drawn up and executed by  22 the Iroquois sachems.  This significant  23 document recites that the Five Nations had at  24 an earlier era conquered a large territory  25 lying about the lower Great Lakes, and had  26 thereby become sole masters and owners of the  27 land.  Recently, however, they had been  28 disturbed in their possession by certain other  29 Indians along with the French, who threatened  30 to deprive them of their hunting grounds.  In  31 consequence, states the deed, the Iroquois had  32 decided to surrender the territory in question  33 to the English King, on condition that they  34 retain free hunting and perpetuity there under  35 the Crown's protection."  36  37 Well, that, in my submission, my lord, is an  38 example of the word "reserved" in the sense of -- in  39 the treaty sense of the word, where the Indian peoples  40 convey something but reserve out of the conveyance  41 some interest.  42 THE COURT:  Well then, are you arguing that "connected" means  43 connected by treaty?  44 MR. GOLDIE:  Connected by treaty or interest, but primarily by  45 treaty.  I don't rule out the connected by interest,  46 but the word "connected" must have a meaning that  47 gives some sense to the pre-existing relationship 27471  Submission by Mr. Goldie  1 between the Crown and the tribes that are there being  2 referred to.  3 THE COURT:  Well, what would be an example of a connection by  4 interest?  5 MR. GOLDIE:  If a group of Indians had allied themselves in  6 warfare with the French without the formality of a  7 treaty of alliance.  8 THE COURT:  You mean with the British?  9 MR. GOLDIE:  Yes, that's correct.  10 THE COURT:  So you wouldn't go so far as to say that it was  11 limited to those Indians with whom we had physical  12 contact, we had trade with them or we had dealings  13 with them?  14 MR. GOLDIE:  Well, there has to be some connection which gives  15 rise to the Crown's concern that molestation or  16 disturbance is a potential threat to the security of  17 the colonies.  18 THE COURT:  Because in this case that Slattery is talking about  19 with the Iroquois around the lower Great Lakes, they  20 had a treaty.  21 MR. GOLDIE:  Yes.  I'm referring to — the treaty is the  22 obvious --  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  -- and clearest example.  I'm just saying there may  25 be exceptions which are not covered by a formal  26 treaty.  But the -- it is clear, and I'll come to this  27 again in part 7, it is clear that the Iroquois  28 particularly occupied a very strategic position and  29 that the French and the British regarded them as being  30 extremely important in the -- both the trading  31 relationship and in the relationship that came to the  32 fore during warfare.  33 THE COURT:  Well then, to take an extreme example, if there was  34 a tribe of Indians living on the east bank of the  35 Mississippi with whom the British had never had any  36 interaction at all, would you say that they would not  37 obtain any rights or interest in their traditional  38 hunting grounds under the proclamation?  39 MR. GOLDIE:  No.  They're not people who pose any sort of threat  40 to the security of the colonies.  41 THE COURT:  Is that a theory that's been advanced previously?  42 It seems to me that most of my reading, which has been  43 general and cursory, has suggested that the Royal --  44 and indeed your learned friend's submission makes it  45 clear that he is saying that the, as some authors have  46 said, that the Royal Proclamation created a vast  47 hunting reserve.  The only question up to this point 27472  Submission by Mr. Goldie  1 has been what is the extent of the reserve.  Now  2 you're saying that the reserve doesn't include  3 everything even to the east of the Mississippi.  4 MR. GOLDIE:  Well, I'm talking about — I'm talking about the  5 the situation that is being referred to in S, but if I  6 go down to V, your lordship will find the creation of  7 the so-called great reserve between the --  8 THE COURT:  It says "for the use of the said Indians."  9 MR. GOLDIE:  Yes.  10 THE COURT:  Which relates back, I suppose, to S.  11 MR. GOLDIE:  Yes, that's correct.  But the great reserve was  12 intended in a territorial sense and without any  13 distinction as to where the traditional hunting  14 grounds within that reserve might be, if indeed there  15 were traditional hunting grounds.  It simply says  16 we're going to create between the -- between the  17 Mississippi and the Appalachian a very large reserve  18 within which the fur trade is going to be carried on,  19 but no settlement for the present, and it is going to  20 be for the benefit of the said Indians.  But when we  21 look at S and give some sense to the fact that it is a  22 preamble --  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  -- and to the words "not having been ceded to or  25 purchased by us," then we are there talking about, in  26 my submission, something which has already happened.  27 And there are two different ways of dealing with these  28 lands.  The lands that have already been reserved are  29 not to be dealt with except in a very formal way.  The  30 lands in the great reserve are not to be settled upon  31 without the King's leave and licence.  It is, of  32 course, the reserve that's created under V that my  33 friend says extends --  34 THE COURT:  Yes.  35 MR. GOLDIE:  -- westward indefinitely.  But my friends put, as I  36 understand it, put an interpretation upon S which I  37 say is grammatically at odds with what is said plainly  38 and, in my submission, without any need to go beyond  39 the words of the document itself to understand.  And  40 the examples that are given in the references under  41 246, as I mentioned a minute ago, are examples of what  42 I call a treaty use of the word "reserve," a giving  43 and a reservation by and the instrument of some  44 interest.  Now, the interest isn't same in every case.  45 THE COURT:  All right.  Thank you.  46 MR. GOLDIE:  And paragraph 247, there are many examples of lands  47 set apart for Indians within the limits of the pre- 27473  Submission by Mr. Goldie  1 revolution colonies.  And the reference there, my  2 lord, Exhibit 1244-34, is to the document "Early  3 American Indian Documents:  Treaties and Laws, 1607 to  4 1789," and the particular example is called  5 "Spotswood's Treaty with Tuscaroras."  And I won't --  6 I think my friend Mr. Jackson referred to that.  7 The provisions, going back to paragraph 247, the  8 provisions of Y and the formalities expressed in Y  9 would apply to what I call these pre-October 7, 1763  10 reserves, and it was the frauds and abuses that were  11 taking place with respect to the lands which the  12 Indians believed themselves to be protected in which  13 were giving rise to the threats on the part of the  14 Iroquois that their friendship with the British was at  15 an end and with the obvious unrest in around the Great  16 Lakes following the cessation of the fighting with the  17 French when those Indian tribes there were fearful  18 that they were going to be dispossessed in their  19 entirety.  20 Now, the other feature about that is that in these  21 treaties where there is a reservation back or a  22 reservation in the sense of withholding is that it is  23 the King who is directly holding, in trust or however  24 it is stated in the instrument, holding the lands in  25 question and not through any intermediary other than  26 one who is acting in his name.  So I say that S in  27 itself does not make -- is not an exercise of the  28 prerogative.  It is a description of an existing state  29 of affairs.  30 Now, going back to my submission at page 93, the  31 plaintiffs -- the next part is the Royal Proclamation  32 did not confer ownership and jurisdiction, and that is  33 to say that the character of the interest granted in  34 the so-called great reserve or elsewhere, for that  35 matter, in the instrument does not confer ownership  36 and jurisdiction.  And my understanding is that the  37 plaintiffs rely again on paragraph S of the  38 proclamation to assert that the proclamation confirms  39 their right to ownership and jurisdiction of the  40 territory.  In my submission, that assertion cannot be  41 supported on the terms of the proclamation.  42 The proclamation makes no mention of jurisdiction  43 and ownership.  The proclamation speaks of possession  44 and use of lands and territories by Indians as their  45 hunting grounds.  This language is used repeatedly in  46 paragraphs S, V, and AA.  47 In my submission, the obvious stress in the 27474  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  Submission by Mr. Goldie  document in order to achieve the "Security of our  Colonies" is on the preservation for the present of  Indian "use" of the land really for the purpose of the  fur trade.  It did not, as I have stated, purport to  be exclusive as amongst the Indian nations.  No doubt  there were treaties which delineated areas, but the  proclamation itself does not purport to recognize  traditional or other lands, and one of the reasons for  that is that there has been -- there was a great deal  of movement owing to warfare amongst the Indians  themselves and amongst the -- as allies of the French  and British.  So I say it is -- the emphasis is on the  preservation for the present of Indian "use" of the  land as opposed to preservation of Indian title to or  Indian ownership of the land.  In my submission, this  indicates that the British Crown recognized no Indian  interests in lands other than those of possession,  occupancy, and use.  And that was the interpretation of paragraph S  adopted by the Privy Council in St. Catherine's  Milling, and I have extracted the words in question  from the appeal case report, page 54.  "The territory in dispute has been in Indian  occupation from the date of the  proclamation..."  Of course, there their lordships are referring to the  territory actually in question in St. Catherine's.  "Their possession, such as it was, can only be  ascribed to the general provisions made by the  royal proclamation in favour of all Indian  tribes then living under the sovereignty and  protection of the British Crown."  THE COURT:  That sounds like S.  MR. GOLDIE:  Beg your pardon, my lord?  THE COURT:  That sounds like S.  MR. GOLDIE:  Yes, it does, because the great reserve in V is  "for the use of the said Indians."  THE COURT:  All right.  MR. GOLDIE:  Perhaps I should go directly to the report, which  is under tab 251.  Their lordships said this:  "The territory in dispute has been in Indian  occupation from the date of the proclamation 27475  Submission by Mr. Goldie  1 until 1873.  During that interval of time  2 Indian affairs have been administered  3 successively by the Crown, by the Provincial  4 Governments, and (since the passing of the  5 British North America Act, 1867), by the  6 Government of the Dominion.  The policy of  7 these administrations has been all along the  8 same in this respect, that the Indian  9 inhabitants have been precluded from entering  10 into any transaction with a subject for the  11 sale or transfer of their interest in the land,  12 and have only been permitted to surrender their  13 rights to the Crown by a formal contract, duly  14 ratified in a meeting of their chiefs or head  15 men convened for the purpose.  Whilst there  16 have been changes in the administrative  17 authority, there has been no change since the  18 year 1763 in the character of the interest  19 which its Indian inhabitants had in the lands  20 surrendered by the treaty.  Their possession,  21 such as it was, can only be ascribed to the  22 general provisions made by the royal  23 proclamation in favour of all Indian tribes  24 then living under the sovereignty and  25 protection of the British Crown.  It was  26 suggested in the course of the argument for the  27 Dominion, that inasmuch as the proclamation  28 recites that the territories thereby reserved  29 for Indians had never 'been ceded to or  30 purchased by' the Crown, the entire property of  31 the land remained with them.  That inference  32 is, however, at variance with the terms of the  33 instrument, which show that the tenure of the  34 Indians was a personal and usufructuary right,  35 dependent upon the good will of the Sovereign."  36  37 In the Bear Island case the court held that the  38 intent and effect of the Royal Proclamation was to  39 create aboriginal rights that are personal and  40 usufructuary and dependent upon the pleasure of the  41 Crown.  Personal and usufructuary rights to use land  42 are inconsistent with ownership and jurisdiction over  43 that land.  And the nature of these rights will be  44 discussed at length in another section of the summary.  45 THE COURT:  Is that the Court of Appeal or the trial court in  46 Bear Island?  47 MR. GOLDIE:  That, my lord, I think is the trial court.  I don't 27476  Submission by Mr. Goldie  1 find the excerpt in question in the --  2 THE COURT:  Yes.  All right.  3 MR. GOLDIE:  -- in the yellow binder, but I'm pretty sure that's  4 the trial court.  5 Problems with the plaintiffs' assertion of  6 ownership rights flowing from the proclamation go  7 beyond the words used in the proclamation to describe  8 Indian rights.  One of the incidents of ownership is  9 the right to alienate land to a grantee of the  10 grantor's choosing.  The Royal Proclamation expressly  11 denies that right to the Indians in paragraphs V and  12 Y.  Even the plaintiffs recognize that the  13 proclamation denies Indians the right to unfettered  14 alienation.  And I make reference here to the  15 statement of claim.  And my submission, of course, is  16 one in possession can give only as good title as he  17 has.  Terminating possession only by and to the Crown  18 prevents frauds and abuses practised on sellers as  19 well as on Indians.  And some of the early treaties  20 referred to by my friend Mr. Jackson involved examples  21 of the Indian peoples conveying land to A which they  22 had already conveyed to B.  23 Even the right to continued possession of the land  24 is limited.  The Royal Proclamation expressly states  25 that the reservation of lands to the Indians is "for  26 the present, and until our further Pleasure be known."  27 The temporary nature of the proclamation's measures  28 has been commented upon by scholars.  29 The reference to Stagg there your lordship will  30 find is in the way that scholar saw the situation.  It  31 was black and white.  He poses an interpretation of  32 the proclamation which was -- which indicates that the  33 rights were ephemeral as opposed to something  34 carefully shaped and ordained by events happening long  35 before.  Both of these propositions are probably too  36 extreme, but, nevertheless, the King's pleasure was  37 one which would be exercised by -- for reasons of  38 policy.  39 Then paragraph 255.  Oh, I should say that  40 whatever the interpretation is, and I say the --  41 Stagg's work indicates the two extremes.  He says on  42 the one hand they're ephemeral, on the other hand they  43 represent a long term -- the culmination of a long  44 term policy.  But in both cases they are quite  45 specific in the sense that both -- whatever way you  46 take it, each interest has the common feature of being  47 concerned with the fur trade, and each interest, 27477  Submission by Mr. Goldie  1 however you look at it, was intended to take care of  2 local disaffection on the part of the Indians.  3 In St. Catherine's Milling in the Supreme Court  4 Mr. Justice Taschereau's reasons -- I don't say he's  5 speaking for the majority at this point.  They are his  6 reasons.  But he was of the majority, and the appeal  7 was dismissed in the Judicial Committee.  He comments  8 on the words "for the present."  9 THE COURT:  On that basis the federal government could,  10 notwithstanding section 35 of the Charter, abolish  11 those rights today?  12 MR. GOLDIE:  So far as they have — I say that the — that the  13 rights of the Royal Proclamation have been imbedded in  14 the Indian Act, and the Indian Act is simply an act of  15 parliament.  16 THE COURT:  But even if that were not so, if this passage -- if  17 Mr. Justice Taschereau's statement is correct that  18 it's a temporary reserve "until our further pleasure  19 be known," that the right -- the existing right as of  20 the date of the Charter carried with it that infirmity  21 which would survive the Charter, would it not?  22 MR. GOLDIE:  It would certainly be -- it would certainly -- it  23 is certainly one of -- limited by the Crown's decision  24 with respect to whether the circumstances giving rise  25 to it have passed or whether subsequent circumstances  26 call for a change in the policy.  27 THE COURT:  All right.  28 MR. GOLDIE:  Mr. Justice Taschereau does not say that those  29 words vitiate the entire interest.  He says it  30 doesn't -- it underlines the fact that they do not  31 have conferred upon them a title to the soil.  He  32 said:  33  34 "The words 'for the present,' in this and the  35 next clause are equivalent to a reservation by  36 the King of his right, thereafter or at any  37 time, to grant these lands when he would think  38 it proper to do so.  He reserves for the  39 present for the use of the Indians all the  40 lands in Canada outside of the limits of the  41 Province of Quebec as then constituted.  Is  42 that, in law, granting to these Indians a full  43 title to the soil, a title to these lands?"  44  45 Now, that was -- if I may interject -- that was the  46 submission of Canada or in the Supreme Court of Canada  47 it was the submission of those who derived their 27478  Submission by Mr. Goldie  1 rights from Canada.  And then continuing:  2  3 "Did the sovereign thereby divest himself of the  4 ownership of this territory?  I cannot adopt  5 that conclusion, nor can I see anything in that  6 Proclamation that gives to the Indians forever  7 the right in law to the possession of any lands  8 as against the Crown.  Their occupancy under  9 that document has been one by sufferance only.  10 Their possession has been, in law, the  11 possession of the Crown."  12  13 And I note the judgment of the court was affirmed on  14 appeal without reference to this specific point.  But  15 I do say that the judgment in the Supreme Court -- in  16 the Judicial Committee was made in the face of an  17 argument by Canada that by virtue of the surrender  18 Canada succeeded to the fee in the lands.  19 The defendant Province therefore submits that  20 whatever aboriginal rights were created by the Royal  21 Proclamation, those rights did not include ownership  22 of and jurisdiction over land.  We have elsewhere made  23 the distinction between ownership and jurisdiction  24 being a proprietary right, and the interest which was  25 recognized by the Royal Proclamation was a  26 usufructuary right or a non-proprietary right, the  27 right to use something belonging to somebody else.  28 Now, my lord, I had at this point intended to  29 conclude by dealing with two matters:  firstly,  30 comments on specific points in the plaintiffs' oral  31 argument; and secondly, a general conclusion with  32 respect to the Royal Proclamation in which I would  33 attempt to deal with the context of its purported  34 application to British Columbia, how did it arise that  35 people have alleged that it had an application to  36 British Columbia, but in the interests of time I'm  37 going to deal with those by handing up a written  38 document rather than dealing with it orally.  I find  39 that we're about a day behind, and I want to get on  40 with part VII right away.  I'm going to deal with part  41 VI, which is the international law item, in the same  42 sense of handing up a written submission and  43 curtailing the oral argument with respect to it.  44 THE COURT:  Well, I have a problem about the Royal Proclamation,  45 and I'd like to ask you about it sometime when it's  4 6 convenient.  47  MR. GOLDIE:  I would like to have your lordship's comments 27479  Submission by Mr. Goldie  1 because I can deal with them in the sense that I've  2 talked about.  3 THE COURT:  Well, I'm really trying to capture the full flavour  4 of your argument, and what I would be assisted by is  5 an understanding of what effect, if any, do you say  6 the enlargement of the Province of Quebec had on the  7 operation of the Royal Proclamation in the new lands  8 that came within Quebec; and secondly, the effect of  9 the division of Quebec into what were Lower Canada --  10 MR. GOLDIE:  Yes.  I'd be glad to do that.  I can say that it  11 was -- I was going to allude to that in my --  12 THE COURT:  Well, whenever it's convenient.  13 MR. GOLDIE:  -- my closing comments because your lordship will  14 find that it is in present Ontario constituting those  15 parts which were within old Quebec that the Royal  16 Proclamation was given effect and was given effect and  17 recognized in the sense of -- with particular  18 reference to the needs of those tribes which had  19 remained loyal to the Crown in the American  20 Revolution.  But I'll endeavour to deal with that in  21 the sense that your lordship referred to.  22 THE COURT:  It seems to me that a great part of the enlarged  23 Province of Quebec, extending, as you said yesterday  24 or suggested yesterday, to the westerly end of Lake  25 Superior and north to include Lake Nipissing, was more  26 or less the same -- which is today part of the  27 boundary of Quebec -- I'm sorry -- of Ontario.  28 MR. GOLDIE:  Ontario, yes.  29 THE COURT:  Would have put much of the present Province of  30 Ontario, although not what they call northern Ontario,  31 into the area that was once part of the old Province  32 of Quebec.  33 MR. GOLDIE:  Yes.  34 THE COURT:  And I'm trying to rationalize your argument on  35 British Columbia with the situation in Quebec and  36 subsequently Upper and Lower Canada.  37 MR. GOLDIE:  Well, I'll resist the temptation, having regard to  38 what I've said about our timetable, to embark upon  39 that and endeavour to cover it in our written  4 0 summation.  41 The final section is found under section 5, and it  42 is headed "Royal Proclamation has no unique  43 constitutional nature insulating it from amendment and  44 repeal."  And I am going to leave that to your  45 lordship without further comment because it is a  46 complete, in my submission, answer to the proposition  47 that the Royal Proclamation enjoys something which is 27480  Submission by Mr. Goldie  1 a constitutional oddity, namely, that it can't be  2 dealt with by ordinary legislation, and my submission  3 is that it can.  4 Now, section 6, the errors in Calder and White  5 and Bob concerning the Royal Proclamation.  Again, I'm  6 not going to deal with that in any detail.  In my  7 submission, the mistakes, in fact, which enabled Mr.  8 Justice Hall to conclude that the proclamation had a  9 westward application and that British Columbia did not  10 constitute terra incognita have been adequately dealt  11 with, and this section constitutes a summary of that,  12 and I leave that to your lordship together with the  13 authorities in the binder.  And subject to any other  14 observations of your lordship, I am going to go to  15 part VII.  16 THE COURT:  New yellow book?  17 MR. GOLDIE:  It's a new yellow book, my lord.  Now, while these  18 are being handed up, my lord, I have also handed to  19 the registrar an excerpt from Columbia Encyclopedia  20 which talks about Meares.  21 THE COURT:  Oh, yes.  22 MR. GOLDIE:  I think it may answer your lordship's question with  23 respect to him.  24 THE COURT:  I don't know where I got the idea he was an  25 American, but that's all right.  26 MR. GOLDIE:  I thought at one time -- after he was on half pay  27 or unemployed by the navy I thought at one time he had  28 sailed on an American vessel, but if he did, it's not  29 so stated there.  30 MR. RUSH:  My lord, I think the interesting thing about this is  31 that it doesn't say that he wasn't sailing under a  32 Bostonian vessel or for a Bostonian company, and  33 something to suggest that he might have been is the  34 last sentence where it suggests he returned to the  35 British navy.  It seems to me he returned from  3 6 somewhere.  37 THE COURT:  Yes.  38 MR. GOLDIE:  Oh, yes, he certainly did.  39 THE COURT:  Well, he returned from the service of Macao perhaps.  40 MR. GOLDIE:  Yes.  He was -- he was the captain of a merchant  41 vessel between the time that the navy was reduced, and  42 I think he was recalled shortly after the Spanish  43 armament, which expanded the navy and was almost  44 entirely due to his complaints about being -- having  45 property confiscated by the Spaniards.  I think he  46 went to the House of Commons and made representations  47 which almost led to the war, which in turn led to 27481  Submission by Mr. Goldie  1 Vancouver.  2 MR. MACAULAY:  My lord, there is a good deal of history in this.  3 I don't suppose it's in evidence because it didn't  4 seem relevant, but the fact is that Meares -- when his  5 ships were taken, captured by the Spaniards, there  6 were American ships also in Nootka Sound, and they  7 were left alone.  That was one of the matters that  8 particularly irritated the British.  It was a strike  9 by the Spaniards against the British and obviously not  10 against the Americans.  11 THE COURT:  I see.  12 MR. MACAULAY:  In those circumstances it's pretty difficult to  13 see how Captain Meares could be associated with any  14 Boston vessel.  And if it's important, we can --  15 THE COURT:  Oh, no, I don't think it's — it's interesting, but  16 I don't think it's important.  Thank you, Mr.  17 Macaulay.  18 MR. GOLDIE:  Does your lordship have the —  19 THE COURT:  Yes.  20 MR. GOLDIE:  Part VII, which starts with section 1, is headed  21 "Summary of Defendant Province's Case."  As noted  22 earlier, the Province's submission is that the claim  23 for ownership and jurisdiction of and over the claim  24 area fails in law and on the facts.  No concept of an  25 aboriginal interest over lands, resources and  26 inhabitants of the nature alleged in the case at bar  27 exists in Canada or elsewhere.  28 Protection of an interest of the native peoples on  29 the mainland of British Columbia was a policy of the  30 colonial period.  It arose in a form described by  31 James Douglas in 1860 and was thereafter consistently  32 followed.  The interest thereby created -- I should  33 add that it was anticipated in -- the form of it was  34 anticipated in March of 1859 by Douglas on the  35 mainland.  The interest thereby created protected  36 village sites or settlements, the adjacent fields  37 relied upon by the village inhabitants together with a  38 right to fish and hunt over unoccupied Crown lands.  39 This last was not an exclusive -- I add these words,  40 my lord.  This last was not an exclusive right to hunt  41 and fish.  The only exclusive right was in the  42 protected village sites.  The land area so protected  43 was -- which was withdrawn, that is to say reserved,  44 from country lands would have been otherwise available  45 for pre-emption.  This procedure was applied in the  46 whole of the mainland colony and throughout the  47 colonial period.  Save as already stated, no interest 27482  Submission by Mr. Goldie  1 beyond the limits of the reserves created pursuant to  2 this policy existed and the legislative and executive  3 acts of the colony were wholly inconsistent with the  4 existence of any land interests beyond the limits of  5 the reserves.  6 I submit that the policy in question was the  7 Imperial policy.  The Royal Proclamation had no  8 application to the mainland colony, the latter being a  9 settled colony within whose boundaries parliament  10 admitted of no interests other than those of the  11 settlers.  And I add of the -- of the native peoples  12 as recognized in Douglas policy.  13 The continuation of this policy was ensured by  14 Term 13 of the Terms of Union of British Columbia and  15 Canada.  16 Section 2, "The Constitution of Canada and the  17 Sovereignty of the Crown."  And I recite there, my  18 lord, paragraph 33 of the defence.  19  20 "That the totality of effective legislative  21 power in Canada is conferred or confirmed by  22 the Constitution Act, 1867 (and particularly  23 sections 91, 92 and 92A, thereof), the Statute  24 of Westminster and the Constitution Act, 1982  25 upon or in the Parliament of Canada and the  26 Legislatures of the Provinces and that, if the  27 Plaintiffs, their ancestors or predecessors  28 ever had jurisdiction to make laws for or  29 having effect in any part or parts of what is  30 now the Province of British Columbia, which is  31 not admitted, that jurisdiction did not exist  32 in British Columbia prior to and ceased to  33 exist in British Columbia when the British  34 Columbia Terms of Union came into force in  35 1871."  36  37 If they are to be capable of recognition by this  38 court, such rights of ownership and jurisdiction as  39 are possessed by the plaintiffs must be derived from  40 within the Canadian constitutional system, not outside  41 it.  Any law that is inconsistent with the provisions  42 of the Constitution is, to the extent of the  43 inconsistency, of no force and effect.  And that, of  44 course, my lord, is section 52 of Part VII of the  45 Constitution Act, 1982, which came into force by  46 virtue of the Canada Act, an act of the parliament of  47 the United Kingdom.  And 52 is under tab 2-2. 27483  Submission by Mr. Goldie  1 "The Constitution of Canada is the supreme law  2 of Canada, and any law that is inconsistent  3 with the provisions of the Constitution is, to  4 the extent of the inconsistency, of no force or  5 effect."  6  7 And then subsection 2 of section 52 provides:  8  9 "The Constitution of Canada includes  10 (a)  the Canada Act 1982, including this  11 Act;  12 (b)  the Acts and orders referred to in the  13 schedule; and  14 (c)  any amendment to any Act or order  15 referred to in paragraph (a) or (b)."  16  17 The Royal Proclamation, as I may have noted  18 earlier, is not part of the Constitution of Canada.  19 THE COURT:  I'm sorry.  20 MR. GOLDIE:  I say the Royal Proclamation is not part of the  21 Constitution of Canada.  22 THE COURT:  It's not referred to in the schedule.  23 MR. GOLDIE:  It's not in the schedule, no.  Rights or freedoms  24 recognized by the Royal Proclamation are referred to  25 in section 25, but the Royal Proclamation itself is  26 not part of the Constitution of Canada.  27 Paragraph 3, that the totality of legislative  28 power in Canada is distributed within the institutions  29 of the Constitution is clear from the following  30 passage from Professor Hogg's "Constitutional Law of  31 Canada."  And that's under tab 2-3 and is set out in  32 full.  The relevant parts are set out in full in the  33 text of my submission, and it's, in my submission,  34 significant here.  And I quote:  35  36 "One power that was always withheld from the  37 federal Parliament and the provincial  38 Legislatures was the power to amend the  39 Constitution itself.  That power resided with  40 the United Kingdom Parliament until 1982, and  41 since 1982 has been possessed by the various  42 combinations of legislative bodies stipulated  43 in Part V of the Constitution Act, 1982.  44  45 If one thinks of the Part V amending  46 procedures..."  47 27484  Submission by Mr. Goldie  1 Now, Part V is Part V of the 1982 act, which sets out  2 the presently constituted amending procedures.  So  3 Professor Hogg states:  4  5 "If one thinks of the Part V amending procedures  6 as a third legislative process, then it is now  7 literally true that legislative power in Canada  8 is exhaustively distributed among Canadian  9 institutions.  Every law is amendable to repeal  10 or amendment by one of three processes:  (1)  11 the federal Parliament has authority over all  12 laws within federal legislative power; (2) the  13 provincial Legislatures have authority over all  14 laws within provincial legislative power; and  15 (3) one of the various amending procedures is  16 available to repeal or amend any law that is  17 outside the competence of both the federal  18 Parliament and the provincial Legislatures."  19  20 The process leading to the result described by  21 Professor Hogg took place in stages, the history of  22 which, so far as it is relevant, as it applies to the  23 mainland of British Columbia, will be described below.  24 The constitutional context for the historical  25 inquiry begins with the proposition, the leading  26 expositor of which was Dicey, that the dominant  27 characteristic of English constitutional law is the  28 sovereignty of the Queen in parliament.  And the  29 extract that I refer to is under tab 2-5, and it -- I  30 have set out -- well, perhaps I should turn to that  31 because there's another part of that that I wish to  32 refer to than that which is set out in the submission,  33 and it is the first two paragraphs of Chapter I which  34 precede the extract which I have set out in the  35 submission.  They read as follows:  36  37 "The sovereignty of Parliament is (from a legal  38 point of view) the dominant characteristic of  39 our political institutions.  40 My aim in this chapter is, in the first  41 place, to explain the nature of Parliamentary  42 sovereignty and to show that its existence is a  43 legal fact, fully recognized by the law of  44 England; in the next place, to prove that none  45 of the alleged legal limitations on the  46 sovereignty of Parliament have any existence;  47 and, lastly, to state and meet certain 27485  Submission by Mr. Goldie  1 speculative difficulties which hinder the ready  2 admission of the doctrine that Parliament is,  3 under the British constitution, an absolutely  4 sovereign legislature."  5  6 And, of course, I'm directing all of this to the  7 situation that prevailed in 1858.  8 And then I set out the next parts to which he  9 refers, and the conclusion at the end of the first  10 paragraph is in these words:  11  12 " person or body is recognised by the law  13 of England as having a right to override or set  14 aside the legislation of Parliament."  15  16 And then I next state the proposition in the  17 second paragraph that I want to emphasize, and that is  18 the words beginning in the fifth line:  19  20 "...Any Act of Parliament, or any part of an Act  21 of Parliament, which makes a new law, or  22 repeals or modifies an existing law, will be  23 obeyed by the courts."  24  25 And then I go to the next paragraph.  Subject to  26 what is said in the next three paragraphs, the  27 Imperial Parliament was, with respect to Canada,  28 supreme in every sense of the word.  29 The Statute of Westminster provided in part:  30  31 "No Act of Parliament of the United Kingdom  32 passed after the commencement of this Act shall  33 extend, or be deemed to extend, to a Dominion  34 as part of the law of that Dominion, unless it  35 is expressly declared in that Act that that  36 Dominion has requested, and consented to, the  37 enactment thereof."  38  39 And then I quote sections 1 and 2 of the Canada  40 Act of 1982, which is an act of the United Kingdom  41 Parliament.  42  43 "1.  The Constitution Act, 1982 set out in  44 Schedule B to this Act is hereby enacted for  45 and shall have the force of law in Canada and  46 shall come into force as provided in that Act.  47 27486  Submission by Mr. Goldie  1 2.  No Act of the Parliament of the United  2 Kingdom passed after the Constitution Act, 1982  3 comes into force shall extend to Canada as part  4 of its law."  5  6 Your lordship is aware that these propositions  7 were tested in the constitutional references which  8 took place in 1980, and these were confirmed by the  9 outcome of that despite the opposition of a number of  10 the provinces.  11 The Constitution Act, 1982 came into force in  12 April, 1982.  The results are:  13  14 (i)  No statute of the Imperial Parliament, and no  15 enactment made under powers conferred by or  16 under an Imperial Statute, that came into  17 force before the Statute of Westminster could  18 then, nor can since, be invalid.  19  20 Now, I add that the courts can construe, as they  21 do, they can determine that it is repealed or modified  22 by implication, but they cannot declare an act to be  23 invalid.  The power of declaring an act invalid in our  24 constitutional law derives from the operation of the  25 distribution of powers under sections 91 and 92,  26 something which is unknown in the -- in the English  27 parliament.  28 The second, on page 5:  29  30 Every statute of the Imperial Parliament, and  31 every enactment made under powers conferred  32 by or under an Imperial statute, that came  33 into force after the Statute of Westminster  34 and before the Constitution Act, 1982 came  35 into force, is subject to section 4 of the  36 Statute of Westminster.  37  38 (iii)  No act of the Imperial Parliament passed  39 after April 1982 extends or will extend to  40 Canada as part of its law.  41  42 (iv)  Correspondingly, no statute of the Parliament  43 of Canada or of the Legislature of the  44 Province of British Columbia (within the  45 permitted heads of power) passed after 1 July  46 1867 or 20 July 1871, respectively, under  47 powers conferred by or under an Imperial 27487  Submission by Mr. Goldie  1 statute that extended to Canada as part of  2 its law could be invalid.  3  4 And that's an accepted proposition in our  5 constitutional law, subject, of course, to the Charter  6 of Rights.  7 THE COURT:  Does your submission go so far as to say that no  8 Imperial statute passed prior to the Statute of  9 Westminster could be declared invalid?  10 MR. GOLDIE:  Yes, I do.  Invalidity as declared by a court in  11 the sense that we use it ultra vires is a  12 constitutional impossibility in the English system.  13 THE COURT:  All right.  Thank you.  14 MR. GOLDIE:  Now I'm in paragraph 11, and I say as to British  15 Columbia it is important to draw a distinction between  16 colonial legislation before the union in 1871 and  17 provincial legislation after the union.  Before 1871  18 the only test of the validity of colonial legislation  19 is whether it was authorized directly or indirectly by  20 Imperial statute.  After union there are two tests:  21 first, whether the provincial legislation was  22 apparently authorized by section 92 of the  23 Constitution Act; and second, whether, notwithstanding  24 that it was, it fell within the exclusive legislative  25 authority of the Parliament of Canada under section 91  26 of the same act.  27 Now, my lord, I'm wholly sensitive to the fact  28 that in those six lines I try to compress the  29 constitutional law of Canada, but I think it's a fair  30 summary within what is required for your lordship to  31 take care of this case.  32 THE COURT:  Well, without wanting to be picky about such a  33 difficult task, would you agree to include the word  34 "also" in the second last line after "it"?  35 MR. GOLDIE:  "It also fell"?  36 THE COURT:  Yes.  You would accept that?  37 MR. GOLDIE:  Yes.  I'm expressing there the question of  38 paramountcy.  39 THE COURT:  Paramountcy.  Because it seemed to me that if it  40 also fell within the exclusive legislative authority  41 of the Parliament of Canada, it would still be -- it  42 would still meet the test of provincial validity if  43 the field was unoccupied.  You accept that too?  44 MR. GOLDIE:  Up to a point.  And this, of course, is where the  45 doctrine of paramountcy has been very --  4 6 THE COURT:  Right.  47 MR. GOLDIE:  -- has been refined to a very considerable degree, 27488  Submission by Mr. Goldie  1 and the courts have been at pains to try and find  2 co-existence, and that's one of the footnotes that one  3 would have to act -- have to add if this was to be  4 exhausted.  5 THE COURT:  Yes.  All right.  6 MR. GOLDIE:  Put another way, my lord, this proposition is what  7 was recognized as the scheme of the act before 100  8 years of judicial interpretation took place.  9 THE COURT:  Yes.  10 MR. GOLDIE:  Now, it is, of course, trite law or at least it has  11 been since Hodge and the Queen that within their  12 allotted spheres the Parliament of Canada and the  13 Legislatures of the province are equally sovereign.  14 THE COURT:  That's the watertight compartment statement.  15 MR. GOLDIE:  Well, the watertight one came along with, I think,  16 Lord Atkin, but in Hodge and the Queen it was  17 determined that the provincial legislature was not a  18 subsidiary --  19 THE COURT:  Yes.  All right.  20 MR. GOLDIE:  — of the — of parliament, that the Queen in  21 parliament was -- that the Queen in the provincial  22 assembly was equally so as the Queen in parliament.  I  23 think the argument arose over the relationship of the  24 lieutenant-governor to the viceroy -- to the governor-  25 general.  26 I say the same principal applied in colonial times  27 in British Columbia.  In the Deadman's Island case  28 this was stated by Lord Dunedin, and I have read part  29 of this to your lordship.  The first paragraph I  30 believe I've already read, how matters began in  31 British Columbia, but the last sentence of the first  32 paragraph and the second paragraph I don't believe I  33 have read.  34  35 "By an Act of Parliament passed in that year,"  36  37 that is 1858,  38  39 "British Columbia was erected into a separate  40 territory, and power was given to Her Majesty  41 by Order in Council to appoint a governor and  42 make such provisions for the laws and  43 administration of the new Colony as to her  44 should seem fit.  45  46 Accordingly Sir James Douglas was in 1858  47 appointed governor by letters patent, and an 27489  Submission by Mr. Goldie  1 Order in Council was made defining his powers  2 and duties.  As to his powers, it may be said  3 at once that they were absolutely autocratic;  4 he represented the Crown in every particular,  5 and was, in fact, the law."  6  7 The emphasis that I have laid on the words "absolutely  8 autocratic" will become evident as we get into the  9 actions which Douglas took after his appointment.  10 The circumstances surrounding what the Judicial  11 Committee described as "the initiation of the reign of  12 law" in British Columbia must now be examined.  13 Then section 3, the assertion on the mainland of  14 sovereignty by the Crown over British Columbia prior  15 to 1858.  My lord, I could take the position that all  16 that occurred prior to 1858 is irrelevant on the basis  17 that the -- of the statement of the Judicial Committee  18 that the initiation of the -- of the reign of law  19 began with the act of 1858, but the sovereignty of  20 Great Britain over the mainland has relevance also to  21 the arguments that have been developed by the  22 plaintiffs in respect of the Royal Proclamation, so I  23 go into the history of this to some extent as indeed  24 my friends have.  25 By the close of the year 1763 it could be said  26 that the sovereignty of the British Crown in North  27 America extended to:  28  29 (a)  The existing Colonies on the Atlantic Seaboard  30 including additions thereto and the new  31 Provinces of West Florida and East Florida;  32  33 (b)  The new Province of Quebec;  34  35 (c)  The Indian Territories referred to in the Royal  36 Proclamation west of the Appalachians  37 and east of the Mississippi (the headwaters of  38 the Mississippi being thought to intersect the  39 southern boundary of Rupert's Land around the  40 50th degree of latitude);  41  42 (d)  Rupert's Land, comprising the territories  43 granted under the Charter of Charles II to the  44 Hudson's Bay Company and as acknowledged to be  45 British by virtue of Article 10 of the Treaty of  46 Utrecht.  47 27490  Submission by Mr. Goldie  1 Paragraph 2, west of the Mississippi and south of  2 Rupert's Land lay lands recognized by Great Britain as  3 French (Louisiana) or Spanish (New Mexico and the  4 settlements on what is now the coast of California).  5 West of and north of Rupert's Land (the height of land  6 marking the watershed of the rivers draining into  7 Hudson Bay) was, in my submission, terra incognita.  8 And I, of course, refer to the evidence which I  9 reviewed in the section dealing with the Royal  10 Proclamation.  The state of knowledge on the part of  11 the British immediately prior to the voyages of  12 Captain George Vancouver in 1792 and the overland  13 exploration of Alexander Mackenzie in 1793 is  14 indicated by Arrowsmith's map of 1790.  That's the Map  15 22 in Dr. Farley's folio.  16 The inclusion within the area of British influence  17 of lands west of the Rocky Mountains and north of the  18 Spanish settlements on the Pacific Coast commences  19 with the voyages of Captain Cook, which were voyages  20 of exploration and discovery.  In my submission,  21 Captain Cook's instructions, while directing him to  22 leave marks of occupation and claims of possession in  23 uninhabited territories, made it clear that he was not  24 to engage in hostilities, that he was to search for  25 and determine whether there existed the Northwest  26 Passage.  That was his primary interest.  Cook's  27 reports led to the development of the marine fur trade  28 and the resort -- and I add -- and the resort to this  29 coast of commercial vessels interested in that trade  30 in considerable numbers.  31 Captain Vancouver's instructions of 1791, and I  32 should -- I alter the following in this sense so that  33 it reads in respect of the Nootka settlement  34 constituted assertions of sovereignty as did his  35 actions on the mainland.  36 Mackenzie's overland expedition in 1793 had a  37 commercial purpose, but the benevolent protection of  38 fur traders by the British Crown was a known fact.  39 Confrontation between Great Britain and Spain in 1790  40 arose out of the latter's treatment in 1789 of British  41 traders at Nootka.  42 Now, in my submission, an indisputable assertion  43 of sovereignty over the mainland of British  44 Columbia -- before I read that paragraph I wish to  45 interject, my lord, that all of the matters which have  46 preceded the Act of 1803, which I'm going to refer to  47 in a minute, could be argued as ambiguous in this 27491  Submission by Mr. Goldie  1 sense:  that they were either reactions to the threats  2 to British subjects; or they were acts purely of  3 exploration having for their purpose other objects  4 than the possession of territory; or they were -- they  5 led as incidentally to extensions of trade but not of  6 territory.  But when we come to the Act of 1803, in my  7 submission, there is an act of sovereignty over the  8 mainland of British Columbia because the jurisdiction  9 of the provincial Canadian courts to crimes committed  10 beyond the limits of Upper and Lower Canada were  11 extended.  12 The Act of 1803, which should be in the book  13 here -- yes, it's under tab 3-6.  And on the first  14 page opposite the sidelining there, following the  15 recitals which assert the condition of crimes and  16 offences being committed in Indian territories and  17 other parts of America not within the limits of the  18 provinces of Lower and Upper Canada, about 10 or 12  19 lines from the bottom the word "that" introduces the  20 substantive portion of the act, and I quote:  21  22 "...That, from and after the passing of this  23 Act, all Offences committed within any of the  24 Indian Territories, or Parts of America not  25 within the Limits of either of the said  26 Provinces of Lower or Upper Canada, or of any  27 Civil Government of the United States of  28 America, shall be and be deemed to be Offences  29 of the same Nature, and shall be tried in the  30 same Manner and subject to the same Punishment,  31 as if the same had been committed within the  32 Provinces of Lower or Upper Canada."  33  34 And over the page, section II  empowers the  35 governor or lieutenant-governor of Lower Canada to  36 authorize people to act as civil magistrates and  37 justices of the peace "for any of the Indian  38 Territories or Parts of America not within the Limits  39 of either of the said Provinces, or of any Civil  40 Government of the United States of America, as well as  41 within the Limits of either of the said Provinces,  42 either upon Informations taken or given within the  43 said Provinces ... or out of the said Provinces in any  44 Part of the Indian Territories," etcetera, "for the  45 Purpose only of hearing Crimes and Offences, and  46 committing any Person or Persons guilty of any Crime  47 or Offence to safe Custody, in order to his or their 27492  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  Submission by Mr. Goldie  being conveyed to the said Province of Lower Canada,  to be dealt with according to Law; and it shall be  lawful for any Person or Persons whatever to apprehend  and take before any Person so commissioned as  aforesaid," etcetera.  And then over the page, my lord, page 89, the last  part of section III enables the judges -- it's  about -- yes, about halfway down the page beginning  with the words:  "...and it shall also be lawful for the Judges  and other Officers of the said Courts to issue  Subpoenas and other Processes for enforcing the  Attendance of Witnesses on any such Trial; and  such Subpoenas and other Processes shall be as  valid and effectual, and be in full Force and  put in Execution in any Parts of the Indian  Territories, or other Parts of America out of  and not within the Limits of the Civil  Government of the United States of America, as  well as within the Limits of either... Lower or  Upper Canada..."  THE  MR.  THE  MR.  THE  MR.  MR.  MR.  THE  MR.  COURT  GOLDI  COURT  GOLDI  COURT  GOLDI  RUSH:  GOLDI  COURT  GOLDI  :  But that's limited to Indian territories, isn't it?  E:  I beg your pardon?  :  It's limited to Indian territories, isn't it?  E:  It's limited to "Indian Territories, or other Parts  of America out of and not within the Limits of the  Civil Government of the United States."  It's very  wide.  :  Yes.  All right.  E:  Now, that was 1803.  My lord, I would be assisted, and I think the court  might be, if my friend's proposition is that the  statute in 1803 applied to the territory of the  plaintiffs' ancestors.  E:  Well, I'll come to that, my lord.  :  All right.  E:  The Act of 1803 was prospective and not  declaratory.  The preamble is:  "...shall be and  deemed to be offences..."  It was directed to lands  lying to the west of Lower and Upper Canada in the  Indian territories and other parts of America, the  latter being outside the limits of any civil  government of the United States of America, although  the French and Spanish claims were acknowledged to  exist in Section IV.  I turn to that for a minute. 27493  Submission by Mr. Goldie  1 "Provided always, and be it further enacted,  2 That if any Crime or Offence charged and  3 prosecuted under this Act shall be proved to  4 have been committed, by any Person or Persons  5 not being a Subject or Subjects of His Majesty,  6 and also within the Limits of any Colony,  7 Settlement, or Territory belonging to any  8 European State, the Court before which such  9 Prosecution shall be had shall forthwith acquit  10 such Person or Persons not being such Subject  11 or Subject as aforesaid..."  12  13 I say in paragraph 8 that a cumbersome manner of  14 describing the lands referred to in the act provided,  15 if not certainty, flexibility.  The act required no  16 amendment when the United States acquired Louisiana  17 through the Louisiana Purchase later in 1803 or when  18 the southern boundary of British possessions west of  19 the Canadas was settled in 1818.  By that I mean, my  20 lord, that Louisiana then became part of the United  21 States and so was excluded from the operation of the  22 act.  The largest component of "Indian Territories"  23 was Rupert's Land, declared in the Charter of May 2nd,  24 1670 to be a colony and acknowledged by Article 10 of  25 the Treaty of Utrecht to be British, notwithstanding  26 the inability of the commissioners under that treaty  27 to agree on the precise boundary.  28 THE COURT:  What's the settlement of 1818 again?  29 MR. GOLDIE:  That was the Treaty of Ghent, my lord, following  30 the cessation of hostilities of 1812.  31 THE COURT:  Yes.  All right.  And —  32 MR. GOLDIE:  It settled the boundary at the 49th parallel at  33 least to the Rocky Mountains or to the Rocky  34 Mountains.  35 THE COURT:  Yes.  All right.  Thank you.  36 MR. GOLDIE:  Now, I say that the phrase "Indian Territory" had  37 no precise connotation.  It certainly wasn't intended  38 to suggest lands owned by Indians.  It was a phrase  39 used interchangeably with "Indian country," "interior  40 country," "northwest country," and "northwest  41 territory" by the Lieutenant-Governor of Lower Canada  42 in 1802 when he was urging the legislation which  43 became the 1803 act.  44 And I refer there to the document under tab 3-9,  45 and this is the Lieutenant-Governor of Lower Canada to  46 Lord Hobart on the 30th of October, 1802.  And I'll  47 come back to this again, but I just note in the first 27494  Submission by Mr. Goldie  1 paragraph in the fifth line the words "Indian  2 Territory" in the clause "to take cognizance of  3 offences committed in the Indian Territory"; three  4 lines down the words "Indian Country" in the clause  5 "magnitude and importance of the trade carried on with  6 the Indian Country"; and then in the next paragraph  7 six lines down "the interior of the North West  8 Country" in relation to furs which were formerly  9 shipped from Hudson's Bay now being exported from  10 Quebec; and then in paragraph 6 in the fourth line,  11 talking about the extent of trade, "very far into the  12 Interior of the North West parts of this Continent";  13 and then over the page, paragraph 8, "very lately a  14 Clerk of the North West Company at one of their Posts  15 upon the Confines of the Country commonly known by the  16 name of the Hudson's Bay Limits, had a dispute with a  17 Clerk of the New Company"; and then in paragraph 11 in  18 the second paragraph of that section, third line, in  19 the clause "a competent Jurisdiction for the Trial of  20 all offences committed in the Indian Country without  21 the Limits of the Two Canadas."  22 Now, returning to my summary, the mischief --  23 MR. RUSH:  You missed "Indian Territory" on the last page.  24 MR. GOLDIE:  And what paragraph is that, please?  25 MR. RUSH:  Second to last paragraph, fourth line -- fifth, sixth  2 6 line down.  27 MR. GOLDIE:  Well, I take it that my friend is referring to the  28 sentence that reads -- well, I'll read the whole of  29 the paragraph that my friend refers to.  30  31 "But at the same time I am of opinion, and  32 therefore subject to Your Lordship's  33 Consideration, if it might be proper that the  34 act of the Imperial Parliament (in case one  35 shall be passed) to provide a means for the  36 Trial of offences committed without these  37 Provinces should also empower the Governors to  38 appoint such Person or Persons as they shall  39 see fight, to seize and apprehend in the Indian  40 Territory all Persons whatsoever charged with  41 Felonies and to send them under proper Custody  42 to that Province to which they belong, or from  43 which they proceeded to the Indian Territory,  44 in order there to take their Trial for the  45 same.  His Majesty's Proclamation of the 7th  46 Oct. 1763 has a Clause somewhat similar to that  47 which I have here proposed, but it extends only 27495  Submission by Mr. Goldie  1 to Military Officers and to officers of the  2 Indian Department, of which Descriptions of  3 Persons there be none in the North West  4 Territory."  5  6 Now, my point -- my submission, my lord, is that  7 there are a variety of words which are used, all  8 apparently being synonymous with the territory largely  9 undefined but at least to the west and north of the  10 two Canadas.  And that becomes a little clearer when  11 we look more closely at the mischief intended to be  12 cured by the Act of 1803, which was the rivalry  13 between two Montreal fur trading concerns, the North  14 West Company and the XY Company.  And that is  15 indicated in the document to which I have been  16 referring, particularly paragraphs 8 and 9, which  17 refers to the fracas between people of the North West  18 Company and what is called in this despatch the New  19 Company.  And then the enclosures, one of which is --  2 0  THE COURT:  The new company in that context would be the North  21 West Company, wouldn't it?  22 MR. GOLDIE:  No, these two companies, the new company and the  23 North West Company, merged to become the North West  24 Company, which subsequently merged with the Hudson's  25 Bay Company.  But for a short while there was  26 something called the XY Company and the North West  27 Company, both out of Montreal.  2 8  THE COURT:  All right.  29 MR. GOLDIE:  And it was the -- at this point the competition  30 with the Hudson's Bay Company had not reached the  31 proportions it did subsequent to the merger of the two  32 Montreal concerns.  33 The enclosures consist of a memorandum signed by  34 the judges of Montreal and -- to the presentment of a  35 grand jury dated September 10th, 1802.  The first one  36 speaks -- and this is on page 3 of the document.  37  38 "Sir,-We have the honour to present to Your  39 Excellency a Calendar of the prisoners tried,  40 convicted, and under sentence, at the last  41 Session of His Majesty's Court of King's Bench  42 for this District.  43  44 With respect to the murders lately  45 committed in the Interior, or Indian Territory,  46 the Grand Jury have endeavoured to represent  47 the magnitude of the evils to be apprehended, 27496  Submission by Mr. Goldie  1 should a speedy remedy not be provided, to  2 restrain the dangers that actual circumstances  3 too clearly announce.  4 Should the Imperial Parliament grant to the  5 Respective Governments in the two Canadas, a  6 Jurisdiction similar to that enacted by a  7 statute passed in the 15th year of His present  8 Majesty's Reign, chap. 15, sec. 29 for  9 America - that Felonies committed in places  10 where there may be no Court of competent  11 Jurisdiction, to try the same, may be tried in  12 the Province next adjoining to such place,  13 where the Felony may have been committed, it  14 might deter the commission of crimes, so far as  15 the dread of detection and punishment could  16 extend."  17  18 And going to the presentment of the grand jury, it  19 starts off by stating in the first paragraph:  20  21 "That circumstances which have happened in the  22 Indian Country, evince the existence there of a  23 most serious evil which altho' generally known,  24 yet the Grand Jury find themselves incompetent  25 legally to investigate the same in its  26 particular instances, as the alleged facts have  27 happened beyond the limits of the District, and  28 of the Province, but as such evil, in its  29 nature, involves consequences of the highest  30 Importance, to the lives, personal freedoms and  31 properties of many of His Majesty's subjects of  32 this Province, they feel themselves ... called  33 upon,"  34  35 etcetera.  And then they recite the fact that:  36  37 "The two provinces of Canada are each bounded  38 upon one side of the Territory called Hudson's  39 Bay, and to that Territory, a very extensive  40 Trade is carried on through both Provinces, but  41 particularly from Lower Canada, from whence a  42 number of persons annually go thither, and when  43 there, many remain therein for one or more  44 years employed in different departments of the  45 Indian Trade..."  46  47 And that's the basis of the interest of the people of 27497  Submission by Mr. Goldie  1 Lower Canada.  2 And then there's a recitation to the fact that  3 there is in the territory of Hudson's Bay not one  4 tribunal for the cognizance of crimes and criminal  5 offences, and down towards the end of that paragraph  6 they say the only way in which this can be dealt with  7 is:  8  9 "...under the present Statute of the 33rd of  10 Henry the the issuing of a special  11 Commission in England by His Majesty, where  12 alone, the facts can be legally enquired into  13 and decided upon by a competent Court and Jury.  14 The consequences which may result from a  15 doubtful Jurisdiction, or from the necessity of  16 a Reference to a Jurisdiction in this respect  17 so remote as England is, one obvious and most  18 alarming, such doubtful and such remote  19 Jurisdiction may have been an incitement to the  20 Commission of Crimes,"  21  22 and so on.  And at the top of the page:  23  24 "Nothing can have a greater tendency to  25 prevent and repress Crimes than the idea of  26 speedy Trial."  27  28 Next paragraph:  29  30 "The very heavy expense incident to the  31 Conveyance of offenders from the Territory of  32 Hudson's Bay to England, with the necessary  33 witnesses on both sides, and the cost of  34 Prosecution and defence, must generally  35 operate, either to prevent recourse to a  36 Tribunal across the Ocean, and thereby  37 stimulate to private retaliation and revenge,  38 or where such course can or shall be had, the  39 guilty may escape punishment,"  40  41 and so on.  So all of this is underlining the fact  42 that in the conduct of the fur trade matters were  43 taking place in the area in which that trade was being  44 carried on and which underlined the fact that there  45 was no court of competent jurisdiction.  46 Now, I say in paragraph 10 that the predominant  47 interest of the fur trade is indicated by the grant of 27498  Submission by Mr. Goldie  1 the administrative powers to the Governor of Lower  2 Canada as more convenient for the fur-trading people  3 of Montreal who utilized the Ottawa River to come and  4 go to the upper country.  In that sense, my lord, I'm  5 referring to the fact that it is the lieutenant-  6 governor or governor of that province which is  7 authorized to commission people as magistrates in the  8 territories themselves.  9 I next refer to Mackenzie's overland expedition.  10 THE COURT:  I think we'll take the morning adjournment now.  11 MR. GOLDIE:  All right, my lord.  12 THE COURT:  All right.  Thank you.  13 THE REGISTRAR:  Order in court.  Court stands adjourned for a  14 recess.  15  16 (PROCEEDINGS ADJOURNED AT 11:05 A.M.)  17  18 I hereby certify the foregoing to  19 be a true and accurate transcript  20 of the proceedings transcribed to  21 the best of my skill and ability.  22  23  24  25  26  27 Leanna Smith  28 Official Reporter  2 9 UNITED REPORTING SERVICE LTD.  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 27499  Submissions by Mr. Goldie  1 (PROCEEDINGS RECOMMENCED AFTER MORNING RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord, I was at paragraph 11 on page 6, and I am  6 dealing here with Mackenzie.  I say his overland  7 expedition in 1793 was carefully planned.  In 1802 he  8 urged that trade west of the Rockies be viewed in a  9 national light.  Although this was foreshadowed in  10 what he reported to the government of Upper Canada in  11 1794, in 1802 he was addressing the Under Secretary of  12 the Colonies, and his letter is dated within the week  13 of the Lieutenant-Governor's despatch to the Secretary  14 of State of the Colonies.  15 I want to deal with those references in  16 chronological order, my lord.  The first one being  17 Mackenzie's report to Governor Simcoe of Upper Canada.  18 It's under Tab 3-11, and it is the second document  19 under that tab following the blue binder.  And the  20 heading at the top is "The Simcoe Papers".  21 THE COURT:  Yes.  22 MR. GOLDIE:  And Mackenzie reported to Simcoe in September of  23 1794, and right after he got back from his journey,  24 the footnote, my lord, indicates that the fur  25 companies which were -- whose rivalry had caused --  26 was the immediate cause of the 1803 Act were  27 amalgamated in 1804 and became the Northwest Company.  28 That's footnote 2.  2 9 THE COURT:  Oh, yes.  30 MR. GOLDIE:  It states:  31  32 "He was knighted at 10th of February 1802.  He  33 formed a rival fur company, which was  34 eventually amalgamated with the Northwest Fur  35 Company in 1804. "  36  37 THE COURT: Yes.  38 MR. GOLDIE:  And it, of course, is the -- but it was the rivalry  39 of the two Montreal concerns which gave rise to the  40 1803 Act.  41 Over the page, at page 68 is Simcoe referring to  42 Mackenzie's voyage.  And it is important, my lord,  43 because it indicates that the attention of government  44 was being directed to fur trade over land to the  45 Pacific.  He starts off by saying:  46  47 "After the present report has been collected for 27500  Submissions by Mr. Goldie  1 the information of your Lordships, Mr.  2 Mackenzie of the Northwest Company, who had  3 formerly penetrated thro' the back parts of  4 this Country to the Northern Sea, has arrived  5 at this place from his journey to the Pacific  6 Ocean.  7 He describes the communications betweeen  8 Upper Canada and this ocean to be practicable,  9 similar methods being pursued by which the  10 Northwest Company have already extended their  11 factories over the internal parts of the  12 country.  13 The height of the land between Peace River  14 which he ascended to its source and branches of  15 the great river which he supposes to be the  16 river of the west, not being more than seven  17 hundred yards.  18 The traffic which may be carried on by this  19 rout, will undoubtedly strike your lordships as  20 a matter of great importance, but it appears  21 from the observations of Mr. McKenzie who seems  22 to be as intelligent as he is adventurous, that  23 to carry on this commerce to national  24 advantages, the privileges and rivalship, the  25 claims and monopoly of great commercial  26 companies must be reconciled and blended in one  27 common interest.  28 His observations on this head which  29 particularly attracted my attention were that  30 the most practicable rout to the northwest was  31 thro' the territories of the Hudson's Bay  32 Company, that by this rout from Great Britain  33 all the navigation from Montreal thro' the  34 Chains of Lakes and their immense communication  35 and its consequent carriage, would be saved,  36 but that on the other hand the people of Canada  37 being infinitely more capable of the hardships  38 of the Indian life, and all the vicissitudes  39 and dangers incident to the trade, than  40 Europeans, from thence, must draw those  41 supplies of men without which it would not be  42 possible to pursue the commerce."  43  44 Then over the page.  45  46  47 "The northwest traders would find it their 27501  Submissions by Mr. Goldie  1 interest to collect all the most valuable of  2 the furs, now brought from the interior parts  3 of America, and to pass them down the streams  4 which fall unto the Pacific Ocean and this Mr.  5 McKenzie says they could do with much less  6 expense and difficulty than bringing them thro'  7 the St. Lawrence.  8 In respect to the valuable furs on the  9 coast of the Pacific Ocean, his ideas are that  10 a post at Cooke's River and another at the  11 southerly limit of the British Claims would  12 probably secure the whole traffic, and as this  13 cannot be done in any other manner than by  14 conciliating the affections of the natives, it  15 is natural to suppose that the habits of a  16 people long accustomed to the manners and  17 disposition of the Indians, will be found to be  18 of the greatest consequence to promote so  19 desireable a purpose; the crews of trading  20 vessels seem by no means fit for this traffic  21 and the Russians have severely felt their  22 ignorance of its customs."  23  24  25 And then going back to the first document  26 under --  27 THE COURT:  Do you know what he refers to by Cooke's River?  28 MR. GOLDIE:  Not offhand I do not, my lord.  2 9  THE COURT:  All right.  Thank you.  30 MR. GOLDIE:  I turn now to the first document under Tab 3-11,  31 which is Mackenzie's letter to the Under Secretary for  32 the colonies, and this is dated October 1802.  And he  33 says:  34  35 "My Lord Hobart having done me the honour at  36 parting, to express a wish of hearing from me,  37 on this side of the Atlantic, I take the  38 liberty of addressing you, enclosing copies of  39 two papes."  40  41 Now, Hobart was at that time the secretary for  42 State for Colonies, and it was to him that Milne wrote  43 on the 30th of October, 1802 urging the creation of a  44 system of administration of justice in the northwest  45 country or the northern country, the interior country,  46 the Indian territories.  47 27502  Submissions by Mr. Goldie  1 Mackenzie goes on to say:  2  3 "The papers ..."  4  5 One of which was the presentment of the Grand  6 Jury.  7  8 "... will explain themselves, and, I am sorry to  9 say, show that I have not succeeded; as also  10 evince the improbability of my being able to  11 succeed in bringing about the union between the  12 two Fur Companies, which my Lord Hobart so  13 strongly recommended to me as the first step  14 towards the accomplishment of my favourite  15 project; without the aid of Government, by  16 granting the Licences (I had the honour of  17 proposing) to one of the contending parties,  18 with the condition that the other party should  19 have the option of sharing, in th proportion of  20 the Trade they might be carrying on, to that  21 part of His Majesty's Dominions, I see no means  22 of bringing about a coalition for several years  23 to come, making the Western Establishment lost  24 perhaps forever."  25  26 And then over the page he says in the first  27 complete paragraph:  28  29 "As so little probability exists of bringing  30 about in a reasonable time a Voluntary  31 Coalition of the two Fur Companies, may I be  32 permitted to submit to His Lordship's  33 consideration the expediency of securing at all  34 events in a National point of view the means of  35 hereafter giving efficiency to the favourite  36 project alluded to, or any other which the  37 Government may think eligible to countenance by  38 forming an immediate Military Establishment  39 upon the Western Coast of North America, so as  40 to prevent other nations anticipating us in an  41 object the importance of which cannot at  42 present be foreseen in all its consequences."  43  44 I pause there to say that Mackenzie at least did  45 not think that the Treaty of Paris conferred any  46 rights upon the British west of the Rocky Mountains.  47 And then he goes on to say that: 27503  Submissions by Mr. Goldie  1  2 "And further, I cannot too strongly entreat His  3 Lordship's attention to the propriety and  4 necessity of establishing as speedily as  5 possible such a jurisdiction as shall prevent  6 the contending Fur Companies from abusing any  7 power which superiority of numbers or strength  8 may accidentally confer ..."  9  10 And at this point he is referring to the  11 administration of justice.  12  13 "A jurisdiction possessing such efficient  14 Judicial Control, besides having the most  15 beneficial effects in general, might also be a  16 means of promoting a speedier Voluntary  17 Coalition of the Companies by presenting a  18 recurrence of those causes of increasing  19 animosity which tend to keep them asunder."  20  21 And then he goes on to take a swipe at the  22 Hudson's Bay Company.  He said:  23  24 "It will not escape His Lordship's penetration  25 that in any Legislative interference upon the  26 subject, it will be essential to avoid  27 everything which could be construed to confer  2 8 upon the Hudson's Bay Company a Parliamentary  29 sanction in regard to their doubtful Charter,  30 or which could give them the right of checking  31 commercial enterprise from this quarter by the  32 usual inland routes into any Territory which  33 Traders from hence have been accustomed to  34 occupy; although the same may nominally be  35 included in the limits of the said Charter."  36  37  38 Now, he is reading the spirit of the Montreal  39 traders who said, 'Yes, we know all about this charter  40 that you have, but we don't want to interfere with our  41 trade.' And then he makes reference to exploration on  42 the west of the Rockies.  He said:  43  44 "I had the honour of remarking to my Lord Hobart  45 that an attempt had been made by one of the  46 partners of the old Fur Company to penetrate in  47 a more Southern direction than I did to the 27504  Submissions by Mr. Goldie  1 River Columbia, in which he failed through  2 ill-health.  A second attempt has been made by  3 another partner of the same concern with no  4 better success, owing to a mutiny of the men  5 employed arising as I judge from the want of an  6 appropriate talent for such an undertaking in  7 the leader, I have been credibly informed that  8 the Astronomer who went with both expeditions  9 declares positively that the object is not  10 impracticable."  11  12 I think that refers to David Thompson, my lord.  13 The submission that I make with respect to those  14 events and documents is that the Act of 1803 resulted  15 from those representations.  It was intended to apply  16 to the fur trade, that it was known that the potential  17 for that trade existed over land to the coast of the  18 Pacific, to the coast of -- the Pacific Ocean, even  19 though the fur trade at that point was limited to the  20 the territories east of the Rockies, and which were  21 acknowledged to be British.  So that the Act of 1803  22 was couched in terms consistent with a westward  23 extension of the fur trade as envisaged by Mackenzie  24 and which in fact occurred.  25 The very ambiguity of the statutory language was  26 in my submission framed with the representations made  27 by Simcoe and by Mackenzie in mind, so that if the fur  28 trade was carried on west of the Rockies, this Act  2 9 would apply.  30 My lord, I make reference to the provincial  31 fisheries case, which was the -- how the case was  32 known in the Supreme Court of Canada which became  33 known as the fisheries reference in the judicial  34 committee when the appeal was taken there.  35 I put in an extract from the judgment of Chief  36 Justice Strong, which is obiter, but is of some  37 interest, and he is talking there about the  38 application of French law or civil law top rivers in  39 Quebec, and he refers to the case of Dixson v.  40 Snetsinger.  He said:  41  42 "If the doctrine of this case of Dixson v.  43 Snetsinger is correct, and I do not question  44 its soundness, it would seem to apply not only  45 to lakes and rivers in the present provinces of  46 Ontario and Quebec, in the boundaries of which  47 are now comprised so much of the territory of 27505  Submissions by Mr. Goldie  1 the old province of Quebec, established by the  2 Act of 1884, as yet remains part of the  3 dominions of the Crown, but also to the  4 provinces of Nova Scotia, New Brunswick, and  5 Prince Edward Island as well, inasmuch as all  6 these were originally territories ceded by  7 France to Great Britain.  Further, it might  8 also apply to the province of Manitoba and the  9 Northwest, so far at least as those portions of  10 the territory of the Dominion were acquired to  11 the British Crown under the 10th articles of  12 the Treaty of Utrecht by the description of  13 'the bay and straits of Hudson, together with  14 ..."  15  16 Et cetera.  Then he says:  17  18 "With regard to the province of British  19 Columbia, however, the principle decision in  20 Dixson v. Snetsinger can have no application."  21  22 And by that His Lordship is simply taking it as a  23 matter for granted that no part of British Columbia  24 was -- could be traced back to any of the French  25 cessions, or to any of the treaties with France.  26 But continuing on with my submissions with respect  27 to the 1803 Act.  I say this flexibility in drafting  2 8 produced doubt and ambiguity and the Act 1 and 2  29 George the IV, the Act of 1821, confirmed, in my  30 submission, the extension west of the Rockies of the  31 Act of 1803.  And I am referring to -- that Act is  32 found under Tab 3-13.  And again by way of background,  33 my lord, the --  34 THE COURT:  What would extend west of the Rockies, the 49th  35 parallel?  36 MR. GOLDIE:  No.  There is no -- the boundary as between the  37 United States and England was the 49th parallel, but  38 only up to the Rocky Mountains or the Stoney Mountains  39 as they were known as.  40 THE COURT:  Well, then, what is it that's being extended in your  41 paragraph 13?  42 MR. GOLDIE:  Well, I'm saying that —  43 THE COURT:  I'm sorry, I didn't read it all. "Confirmed the  44 extension west of the Rockies of the Act of 1803."  45 MR. GOLDIE:  Yes, that's right.  46 But the background of this Act between 1803 and  47 1821 the merger of the two Montreal firms had 27506  Submissions by Mr. Goldie  1 occurred, and the real competition, I shouldn't say  2 the real competition, but the acute competition  3 between the Hudson's Bay Company and the Northwest  4 Company set in.  And this is reflected in the recital:  5  6 "Whereas the competition in the fur trade  7 between the Governnor and the Company of  8 Adventurers of England trading into Hudson's  9 Bay, and certain associations of persons  10 trading under the name of the Northwest Company  11 of Montreal, has been found for some years past  12 to be productive of great inconvenience and  13 loss, not only to the said company and  14 associations, but to the said trade in general,  15 and also for great injury to the native  16 Indians, and of other persons subjects of His  17 Majesty:  And whereas the animostities and  18 feuds, arising from such competition, have also  19 for some years past kept the interior of  20 America to the northward and westward of the  21 Provinces of Upper and Lower Canada, and of the  22 territories of the United States of America, in  23 a state of continued disturbance:  And whereas  24 many breaches of the peace, and violence  25 extending to the loss of lives, and  26 considerable destruction of property, have  27 continually occurred therein:  And whereas, for  28 remedy of such evils, it is expedient and  29 necessary that some more effectual Regulations  30 ..."  31  32 And then in the last.  33  34 "And whereas doubts have been entertained,  35 whether the provisions of an Act passed in the  36 Forty-third year of the reign of his late  37 Majesty King George the Third ..."  38  39 That's the 1803 Act.  40  41 "... intituled an Act for extending the  42 Jurisdiction ..."  43  44 Et cetera.  45  46 "Extended to the territories granted by the  47 Charter to the said Governor and company; and 27507  Submissions by Mr. Goldie  1 it is expedient that such doubts should be  2 removed, and that the said Act should be futher  3 extended:  Be it therefore enacted ..."  4  5 And then there is an extension to lands not being  6 part of the lands and territories heretofore granted  7 to the said governor, and not being part of His  8 Majesty's provinces in North America, or of lands and  9 territories belonging to the United States of America.  10 So I say that the Act of 1821 did not repeal the  11 Act of 1803.  What it did was say for greater  12 certainty we are saying that the jurisdiction of the  13 courts of Upper and Lower Canada is put beyond doubt  14 so far as anywhere where the fur trade is being  15 carried on.  16 THE COURT:  I haven't found the operative words in this long  17 sentence.  Extended to where?  18 MR. GOLDIE:  "Be it therefore enacted" starts one, two, three,  19 four -- about five lines down.  20 THE COURT:  I have got that, but what does it enact?  "Which  21 shall be lawful in grants and give licence ..."  22 MR. GOLDIE:  "... a licence ..."  23 THE COURT:  "...  exclusive privilege of trading with the  24 Indians in all such parts of North America."  25 That's what the 1803 Act said, didn't it?  26 MR. GOLDIE:  Yes, it did, my lord.  Now, mind you, this  27 particular provision is setting up the means by which  28 the Hudson's Bay Company got a licence to trade in  29 British Columbia or Caledonia.  30 THE COURT: I'm sorry, I'm missing something.  I thought the Act  31 of 1803 was the one extended, the judicial authority  32 of the courts of Upper and Lower Canada.  33 MR. GOLDIE:  Yes.  34 THE COURT:  And that this one was to extend it to British  35 Columbia, if there was doubt about that.  36 MR. GOLDIE:  Well, it is doing that, but it is also setting up  37 the provision for an exclusive licence west of the  38 Rockies, or in those parts of the territories not  39 granted to the Hudson's Bay Company.  In other words,  40 west of Rupert's Land.  And that's made clear --  41 THE COURT:  I see.  That's in paragraph 5.  42 MR. GOLDIE:  I was going to say that is made clear in the later  43 part of the Act.  If your lordship would -- yes, 5 is  44 the operative section, but I was going to direct your  45 lordship's attention to 4.  46  47 "And whereas by a convention entered into 27508  Submissions by Mr. Goldie  1 between His Majesty and the United States of  2 America, it was stipulated and agreed, that any  3 country on the northwest coast of America, to  4 the Westward ot the Stony Mountains, should be  5 free and open to the citizens and subjects of  6 the two powers, for the term of ten years from  7 the date of the signuature of that convention."  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: Is that the treaty again?  MR. GOLDIE: Yes. That was the 1818.  THE COURT:  All right.  MR. GOLDIE:  And then 5 we have the extension of the 1803 Act.  Now, this Act, of course, covered a number of other  things, and it dealt at greater length with the way in  which the administration of justice would be carried  on.  But the point I am making here is that the Act of  1803 was considered by Parliament to have extended to  British Dominions beyond the Stony Mountains or beyond  the Rockies, and in 1821 this was confirmed.  Notwithstanding the fact that there was what I call a  standstill agreement between -- negotiated between the  United States and Great Britain with respect to that  territory.  MR. RUSH:  If I can just interject.  I believe that the Treaty  of Ghent and the convention to which my friend makes  reference are separate documents.  GOLDIE:  I think that's right, my lord.  I was just thinking  about that.  RUSH:  And the convention is the convention with the United  States of October 20th, 1818, and it's in Dr. Lane's  collection materials at 1039, tab 11.  COURT:  Thank you.  GOLDIE:  Thank you.  I am obliged to my friend.  COURT:  What is the reference?  RUSH:  It's 1039, Exhibit 1039, tab 11.  COURT:  Thank you.  GOLDIE:  Yes.  I make reference to that in my paragraph 16  here.  My submission here is that the Act of 1821,  which makes specific reference to the Act of 1803, and  extends it to the area west of the Rockies, it  confirms, in my submission, that the Act of 1803 was  intended to be an assertion of sovereignty applicable  within the -- within a territory which extended at  this time south of the 49th parallel.  Now, I go back in time a bit, and I say in  paragraph 14 that the early commercial exploitation of  Mackenzie's overland expedition is primarily  MR.  MR.  THE  MR.  THE  MR.  THE  MR. 27509  Submissions by Mr. Goldie  1 associated with the name of Simon Fraser.  In 1805 --  2 that was supposed to come at the next paragraph.  3 In 1805 Fraser established the first permanent  4 settlement in the interior of what became British  5 Columbia at Fort McLeod, that is to say the first fur  6 trade settlement.  In 1806 he established the posts  7 which became known as Fort St. James on Stuart Lake  8 and Fort Fraser on Fraser Lake.  And I make reference  9 there, my lord, to the letters of Fraser in the period  10 1806 to 1808 edited by Mr. K. Lam, who at that time  11 was the Dominion archivist.  12 THE COURT:  Where was Fort McLeod?  13 MR. GOLDIE:  It was the jumping off point for him when he --  14 both when he went down to the Fraser to its mouth and  15 when he made his trip down the Fraser and then turned  16 right so-to-speak and went up to Stuart Lake and  17 subsequently down to Fraser Lake.  18 And I say the events up to and including the year  19 1805 were such that if a domestic court had been  20 called upon to determine whether Great Britain had  21 asserted sovereignty over that part of the northwest  22 coast west of the Rocky Mountains and north of  23 Mackenzie's overland route to the coast, the answer  24 would have been in the affirmative.  In that year the  25 combined fleets of France and Spain were defeated at  26 the Battle of Trafalgar and the incohate claims of the  27 United States founded on the Lewis and Clark  28 expedition into the Oregon country had not been  29 admitted.  And as to the fur trade generally the  30 Hudson's Bay Company and Northwest Company were at  31 odds.  The latter being the combination of the old  32 Northwest Company and the XY company, but under the  33 British flag.  34 THE COURT:  Do you remember the date of the merger of the two  35 companies?  36 MR. GOLDIE:  1804 — of the Hudson's Bay Company, that's 1821, I  37 think.  3 8 THE COURT:  No, XY.  39 MR. GOLDIE:  XY and Northwest was 1804, and that's the date  40 noted in the footnote in the Simcoe papers.  41 Now, I say the importance of the Act of 1803 and  42 of the activities of Fraser and other fur traders  43 consequent upon Mackenzie's overland expedition of  44 1793 is not diminished by either the War of 1812  45 between the United States and Great Britain or the  46 Convention of 1818, and that's the reference my friend  47 provided your lordship with a minute ago, which 27510  Submissions by Mr. Goldie  1 created an area of common interest west of the Rockies  2 on the northwest coast of America as between Great  3 Britain and the United States.  4 Now, that -- an excerpt from that, my lord, is  5 found at tab 3-16.  This is the convention October the  6 20th, 1818.  Article 3 provides:  7  8 "It is agreed that any country that may be  9 claimed by either party on the North West Coast  10 of America, westward of the Stony Mountains,  11 shall, together with its harbours, bays, and  12 creeks, and the navigation of all rivers within  13 the same, be free and open, for the term of ten  14 years from the date of the signature of the  15 present convention, to the vessels, citizens,  16 and subjects of the two powers: it being well  17 understood, that this agreement is not to be  18 construed to the prjeudice of any claim, which  19 either of the two contracting parties may have  20 to any part of the said country, nor shall it  21 be taken to affect the claims of any other  22 power or state to any part of the said country;  23 the only object of the high contracting  24 parties, in that respect, being to prevent  25 disputes and differences amongst themselves."  26  27 Now, that's what I call the standstill agreement  28 whose effect was intended, in my submission, was  29 intended to be confined to the Oregon territory, a  30 term which did not comprehend the area in which the  31 land claims of the case at bar generally lie.  32 The treaty between Spain and the United States in  33 1819 effectively substituted the United States for  34 Spain in respect of the latter's territorial interests  35 west of the Rockies.  And I say this event could have  36 no effect on British assertions of sovereignty west of  37 the Rockies.  38 And I add to that that the real problem which  39 arose for the British west of the Rockies and in the  40 Oregon territory came with the influx of American  41 settlers into that area, in an area in which there  42 were established Hudson's Bay posts by this time, one  43 of them of course being Fort Vancouver.  44 The Act of 1821 resolved the ambiguities of the  45 1803 Act, and so removed any doubt about the  46 application of the Act of 1803 to the lands west of  47 the Rockies and not being part of any lands or 27511  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  Submissions by Mr. Goldie  territories belonging to the United States of America.  If the Act of 1803 did not have some application to  these westward lands it would have been unnecessary to  make reference to it in the Act of 1821.  The commissions issued in 1837 under the 1803 Act  have been noted.  I am not sure they have been noted  so far here, and I will refer to them.  Well, I don't have -- these commissions are found  elsewhere, and I'll come back to them, my lord.  But  they were commissions issued by the -- under the 1803  Act and 1837, and they were issued to -- amongst the  five people in question were where the Douglas and  Ogden and Simpson, and Douglas, of course, never  worked for the Hudson's Bay Company east of the  Rockies.  Ms. Sigurdson tells me it's under tab -- it's  under tab 13, my lord, and it's the document after the  blue separator sheet.  THE COURT:  In 13?  MR. GOLDIE:  Yes.  The first document is the Act of 1821, and  then following it is the -- are these commissions.  And the first two pages are a typed script of the  original document which follows.  And these are  commissions issued under the authority of the Governor  of Upper Canada, and the authority being the Act of  1803.  The commissions are issued to George Simpson,  Alexander Christie, Murdoch, MacPherson, Peter Skene  Ogden and James Douglas.  As I say, Ogden and Douglas  were Hudson's Bay people who in 1837 were west of the  Rockies.  And it authorizes them, going over to the second  page, my lord, amongst other things, midway down the  page following the recital of the names.  THE COURT:  Yes.  MR. GOLDIE:  "I do authorize and empower you the said ..."  And then the names are recited again.  "... wheresoever resident or being at the time,  to Act as Civil Magistrates and Justices of the  Peace for any of the Indian territories or  parts of America, not within the limits of  either of the said provinces of Upper or Lower  Canda or of any Civil Government of the United  States of America, as well as within the limits 27512  Submissions by Mr. Goldie  1 of either of the said Provinces ..."  2  3 That language was clearly intended to apply to the  4 lands west of the Rockies, including the claims area,  5 and is the language of the 1803 Act.  6 I refer in paragraph 19 to the year 1837 again in  7 respect of a Select Committee of the House of Commons,  8 which heard evidence and made suggestions with respect  9 to the lot of aborigines in British possessions.  10 Those relating to Indians in the fur trade areas of  11 the British North America assumed them to be under  12 British rule.  And I make reference there to the  13 document which is -- the extract of the Select  14 Committee's report is found under tab 3-19, and the  15 reference is the sideline one at the bottom of page  16 86.  17 I note in paragraph 20 that Mr. Justice Mahoney in  18 Baker Lake found that England asserted sovereignty  19 over Rupert's Land:  20  21 "No earlier than 1610 and certainly not later  22 than May 2nd, 1670."  23  24 He described the earlier date as follows, and I  25 quote:  26  27 "History around Baker Lake began with Henry  2 8 Hudson's voyage into Hudson and James Bay in  29 1610 and 1611.  That voyage constituted the  30 basis for England's claims to that part of  31 Canada.  It did not record the observation of  32 human habitation anywhere near Chesterfield  33 Inlet."  34  35 In the case at bar the voyages of Captain Cook and  36 Captain Vancouver constitute the earliest assertions,  37 and the Act of 1803 may be taken as the analogue of  38 the Royal Charter of May 2nd, 1670.  39 Now, my lord, I have earlier indicated that there  40 may be some question as to the purpose of the voyages  41 of Captain Cook and Captain Vancouver in terms of  42 taking possession of new lands, but I say there can be  43 no doubt that the Act of 1803 was of assertion of  44 sovereignty in respect of lands which now constitute  45 the colony -- the mainland colony of British Columbia.  46 The perfection of sovereignty in the sense it is used  47 in public international law is in my submission 27513  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  Submissions by Mr. Goldie  irrelevant to determining the establishment of  aboriginal title.  And I refer to Baker Lake at pages  557 and 558, and a particular reference under tab 22  is to the four items that Mr. Justice Mahoney  extracted from the judgments of the Supreme Court of  Canada and from the Marshall judgments and the later  judgment of Sante Fe of the Supreme Court of the  United States.  And he said at page 557:  "The elements which the plaintiffs must prove to  establish an aboriginal title cognizable at  common law are:"  And then item 4.  "That the occupation was an established fact at  the time sovereignty was asserted by England."  And therefore my emphasis has been on the  assertions of sovereignty rather than on the  establishment of sovereignty through the Oregon  boundary treaty of 1846, which has been referred to in  the reference "Re Ownership of the Bed of the Strait  of Georgia".  And I have that under tab 3-23 at page  404.  And His Lordship Mr. Justice Dickson, as he then  was, that:  "As a practical matter settlement patterns  considerably ..."  This is midway down the second complete paragraph:  "As a practical matter, however, settlement  patterns considerably narrowed the range of  realistic possibilities for agreement.  The  correspondence between the United States and  Britain leading up to the 1846 Oregon Treaty  shows that both sides contemplated an eventual  border in the vicinity of the 49th parallel."  THE COURT:  I'm sorry, I don't have that.  What page is that on?  MR. GOLDIE:  That is at page 404 of the extract under 3-23.  THE COURT:  Yes.  I have it.  Thank you.  MR. GOLDIE:  And I put that there, my lord, to illustrate that  the Oregon Boundary Treaty was simply the culmination  of assertions of sovereignty, which in one sense were 27514  Submissions by Mr. Goldie  1 initiated by Captain Cook in 1778.  2 I say the final resolution of the boundary line  3 seaward from the Mainland through the Straits of Juan  4 de Fuca did not take place until 1898, but this did  5 not affect the sovereignty of the United Kingdom in  6 respect of what is now the mainland of British  7 Columbia.  8 The extent of British sovereignty as recognized in  9 public international law immediately prior to the  10 establishment of the Mainland Colony in 1858 is  11 indicated by the map of North America forming part of  12 the report of the Select Committee on the Hudson's Bay  13 Company (inserted as a pocket in Exhibit 1183 which is  14 the report, and identified as AGBC 26A).  Now, my lord  15 I referred to that yesterday in my discussion of the  16 Royal Proclamation, and your lordship may recall that  17 the coloured map with -- on the right, the Canada's,  18 on the left those parts of British North America which  19 are not within the Charter of the Hudson's Bay  2 0 Company, and then in green the Rupert's Land.  21 My lord, if I may hand that up.  Your lordship  22 will see at the 49th parallel a small blip in red.  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  That represents that part of the north of the 49th  25 parallel in the prairies east of the Rockies which  26 were not drained by the rivers into the Hudson's Bay  2 7 Company.  28 THE COURT: Yes.  This is a map of drainages is it?  29 MR. GOLDIE:  Well, it is a map determined by drainage, because  30 the grant to Rupert's Land is expressed in terms of  31 drainage.  32 THE COURT:  Thank you.  33 MR. GOLDIE:  That map I should say shows the yellow of Russian  34 America, which is now Alaska, and in pink the British  35 territories, and I list them there:  36 Columbia - the name which applied to lands north of  37 the 49th parallel extending to the shores of the Artie  38 Ocean and east of Rupert's Land, which are lands  39 drained by rivers, and Rupert's Land being defined as  40 by virtue of the drainage patterns of rivers flowing  41 into the Hudson's Bay, James Bay and Hudson's Strait;  42 and the other British possessions which are east of  43 Rupert's Land consisting of Canada West, Canada East,  44 Labrador, Newfoundland, New Brunswick, Prince Edward  45 Island and Nova Scotia.  4 6 THE COURT:  What is the date of arrowsmith map?  47 MR. GOLDIE:  It was printed in 1857, my lord. 27515  Submissions by Mr. Goldie  1 THE COURT:  Yes.  2 MR. GOLDIE:  My lord, I understand the plaintiffs for the  3 purposes of the Royal Proclamation say that 1763 is  4 the date of British sovereignty over British Columbia.  5 MR. RUSH:  That's not our position.  6 MR. GOLDIE:  I'm sorry, my friend tells me that is not their  7 position.  I assume that by virtue of applying the  8 Royal Proclamation that through the argument of  9 conquest that it related back to 1763.  But in any  10 event that is clearly too early.  11 Elsewhere I understand my friends to say 1846,  12 which is the Oregon Boundary Treaty, and that is far  13 too late.  The assertions of salvaging began in 1803  14 at the latest and possibly earlier.  15 MR. RUSH:  Well, just on this point, I return to the question  16 that I have framed with my friend -- to my friend  17 earlier, and it would be of assistance to me if the  18 province's position is that at the time of the 1803  19 Act the province's view is that there was a British  20 assertion of sovereignty to the land of the ancestors  21 of the plaintiffs.  22 MR. GOLDIE:  Well, I have answered that, my lord.  23 MR. RUSH:  Is your answer yes to that?  24 MR. GOLDIE:  Well, my answer is just what I have asserted, that  25 there was an assertion of sovereignty through the Act  26 of 1803 in the lands which later became part of the  27 mainland colony of British Columbia.  28 THE COURT:  The difference between you obviously is with  29 relation to ancestors.  30 MR. GOLDIE:  Well, the Act, of course, is an assertion of  31 sovereignty with respect to the commission of crimes.  32 THE COURT:  Yes.  33 MR. GOLDIE:  Which are of a certain description, and which may  34 be taken to -- and the issuance of subpoenas with  35 respect to those crimes for trial in Lower Canada.  36 The assertion of sovereignty is an assertion as stated  37 in the Act.  38 THE COURT:  Which, as I recall it, is to all territories not  39 part of the United States or other European Nations.  40 MR. GOLDIE:  It recognized the European Nations as existing.  41 THE COURT:  Which could include the Russians, of course?  42 MR. GOLDIE:  Yes.  And said if the crime was committed in those  43 territories, the person charged is to be acquitted.  44 The other —  45 THE COURT:  But there is no doubt you are asserting that that  46 claim to sovereignty by jurisdiction extends to the  47 claim area in this case? 27516  Submissions by Mr. Goldie  1 MR. GOLDIE:  Yes.  2 THE COURT:  Okay.  3 MR. GOLDIE: I am not talking about people or anything like that.  4 I am talking about the precise wording of the Act and  5 its application.  6 THE COURT:  And you base it not just on the Act, but often the  7 earlier discoveries of Cook and the travels of  8 Mackenzie and Fraser and of --  9 MR. GOLDIE:  In this sense I look to how Mr. Justice Mahoney  10 dealt with the assertion of sovereignty with respect  11 to Rupert's Land.  He said it began with voyages and  12 was no later than, and I put it completed by virtue of  13 the Charter of the Hudson's Bay Company of 1670.  And  14 I say the Act of 1803 can be -- which did not have any  15 territorial application, in the sense of granting land  16 to anybody, but it said people in those lands are  17 subject to the jurisdiction of a British court.  18 And I think I said elsewhere that if it became  19 necessary for a domestic court in 1805 to determine  20 whether sovereignty existed over a particular piece of  21 territory, it would have been in favour of British  22 sovereignty.  23 THE COURT: I misspoke myself when I mentioned Fraser.  24 MR. GOLDIE:  Fraser was -- Mackenzie is the explorer, and his  25 interest in the fur trade and his designation of -- it  26 is a matter of national interest.  In his letter to  27 Simcoe and to Hobart clearly point to the -- to the  28 genesis of the Act of 1803 as an Act of sovereignty,  29 assertion of sovereignty.  30 Now, my lord, I turn to section 4, "Aboriginal  31 interests prior to 1858".  And I am here referring to  32 the period up to December 31st, 1857, which was the  33 year preceding the establishment of the mainland  34 colony.  35 Now, I note, and this has been submitted to your  36 lordship before, that there is no claim for a  37 declaration with respect to aboriginal title in the  38 plaintiffs' pleadings, although the phrase appears in  39 paragraphs 72, 72A, 73, 74, 74A and paragraph -- that  40 should be 9 of the Prayer for Relief, my lord, of the  41 plaintiffs' Statement of Claim.  In the evidence led  42 by the plaintiffs, presumably in support of the claim  43 for a declaration that the plaintiffs have a right to  44 ownership and jurisdiction, there are references to  45 aboriginal or Indian title.  46 The plaintiffs thus appear to use interchangeably  47 terms which have different meanings.  The aboriginal 27517  Submissions by Mr. Goldie  1 title claim referred to in Calder and the Indian right  2 in question in St. Catherine's Milling are of the same  3 quality, a non-propriety claim to use and occupancy  4 dependent upon the Crown in respect of its origin as  5 well as its continuation.  The interest recognized in  6 St. Catherines was described as:  7  8 "... the tenure of the Indians was a personal  9 and usufructuary right, dependent upon the  10 goodwill of the Sovereign."  11  12 This in my submission is the same type of interest  13 described by Mr. Justice Judson in Calder.  14  15 "... What they are asserting in this action is  16 that they had a right to continue to live on  17 their lands as their forefathers had lived and  18 that this right had never been lawfully  19 extinguished.  There can be no question that  20 this right was 'dependent on the goodwill of  21 the Sovereign' ..."  22  23 I had earlier submitted, my lord, in part 3, and I  24 believe in answer to your lordship's question, that  25 occupancy in the case of the Royal Proclamation was a  26 secondary consideration, in the sense that the great  27 reserve was intended to keep settlers out rather than  28 to settle the bounds of particular tribal groups, and  29 in Calder occupancy was admitted for the purpose of  30 that action.  31 Paragraph 4.  In Baker Lake Mr. Justice Mahoney  32 held that the interest claimed in Calder arose by  33 virtue of the common law of Canada.  The right in  34 question in St. Catherine's originated with the Royal  35 Proclamation in 1763.  36 And in Guerin in paragraph 5, the interest of a  37 band in reserve lands in British Columbia held for its  38 use under the Indian Act of Canada gave rise to a  39 fiduciary responsibility on part of Canada when the  40 band's wishes were disregarded in the disposition of  41 the reserve lands surrendered to the Crown under the  42 provisions of that Act.  Of the eight judges who  43 decided the case, three joined Dickson J., as he then  44 was, in his description at page 382 of the sui generis  45 Indian interest in reserve lands as characterized by  46 two features:  general inalienability and a fiduciary  47 obligation arising upon surrender to the Crown. 27518  Submissions by Mr. Goldie  1 Two joined with Madam Justice Wilson in describing the  2 band's interest in its reserve lands by reference to  3 the above quoted excerpt from St. Catherine's Milling  4 and one, as your lordship has remarked, Mr. Justice  5 Estey agreed that the personal nature of the interest  6 was settled by St. Catherine's Milling and Ontario  7 Mining recently reaffirmed by Smith v. The Queen.  And  8 he put it on the basis of agency.  9 However, as has been noted, the plaintiffs in this  10 action seek a declaration of ownership and  11 jurisdiction which is not only a proprietary claim to  12 land, but a claim to supplant the ownership and  13 jurisdiction of the Crown in Right of the Province  14 itself.  That is to say exclusive possession as  15 against the province.  16 It is axiomatic that the source of a right which  17 is enforceable against the Crown must be found in an  18 acknowledgement of the existence of such a right,  19 expressly, or from necessary implication.  Express  20 acknowledgement may be found in an exercise of the  21 Royal Prerogative or in an Act of Parliament.  22 Necessary implication may arise from a course of  23 conduct by the executive on behalf of the Crown.  24 Since even the non-proprietary climb to use and  25 occupancy is a burden on the paramount estate of the  26 Crown there must be some prior acknowledgement of its  27 existence in order for a domestic court to declare a  28 right enforceable against the Crown.  29 I refer to St. Catherine's Milling where the  30 origin of the rights in question was the Royal  31 Proclamation, an exercise of the prerogative of the  32 Crown available to it in ceded or conquered  33 territories.  The submission of Canada in that case  34 was that upon accepting the surrender of a large tract  35 of land under one of the post-Confederation numbered  36 treaties, it succeeded to the entire beneficial  37 interest in the territory in question.  Canada's  38 claims has some similarity to the claim made here for  39 ownership and jurisdiction.  It was rejected in the  40 Supreme Court of Canada, and I make reference  41 particularly to Mr. Justice Taschereau, and when made  42 directly by Canada in the judicial committee.  That  43 the Crown in Right of Canada was the appropriate party  44 to accept a surrender was not questioned, but with  45 respect to the Dominion's contention that it suceeded  46 to the benefit of the surrender the judicial committee  47 said, and I set out at page -- from pages 58 to 59 the 27519  Submissions by Mr. Goldie  1 rejection of the proposition of Canada before that  2 court.  3  4 "Had its Indian inhabitants been the owners in  5 fee simple of the territory which they  6 surrendered by the treaty of 1873, Attorney  7 General of Ontario v. Mercer might have been an  8 authority for holding that the province of  9 Ontario could derive no benefit from the  10 cession, in respect that the land was not  11 vested in the Crown at the time of the union.  12 But that was not the character of the Indian  13 interest.  The Crown has all along had a  14 present proprietary interest in the lands upon  15 which the Indian title was a mere burden.  The  16 ceded territory was at the time of the union,  17 land vested in the Crown, subject to 'an  18 interest other than that of the Crown in the  19 same' within the meaning of Section 109; and  20 must now belong to Ontario in terms of that  21 clause, unless its rights have been taken away  22 by some provision of the Act of 1867 other than  23 those already noticed."  24  25 Now, in the above quotation, my lord, I say Crown  26 in Right of the Province of Ontario, but that is  27 perhaps not entirely accurate.  His Lordship at that  28 time took the position that there was but one Crown,  29 but it could be administered according to where that  30 administration was placed by different political  31 units.  32 My lord, I have an insert that I wish to make  33 reference to here, an addendum, and this arising -- if  34 this could be placed in the book, it's intended to  35 follow paragraph 9 after after the quote.  It could be  36 put really immediately following page six, but  37 intended to follow the quote.  38 I say that the plaintiffs adopt -- and I give the  39 transcript reference -- the judgment of Mr. Justice  40 Strong in St. Catherine's Milling on the nature of  41 Indian title, and say that the Supreme Court of Canada  42 has now adopted these views.  They also say:  43 1.  The judgment of Privy Council on this point is  44 obiter dicta.  45 2.  The principal issue before the Judicial Committee  46 was who benefited and not the circumstances under  47 which it was made. 27520  Submissions by Mr. Goldie  1 3.  The views of Mr. Justice Taschereau are coloured  2 by pre-conceptions and at odds with that of Chief  3 Justice Marshall in Johnson and Mcintosh.  4 Now, taking these one by one.  The judgment of Mr.  5 Justice Strong was adopted in argument by counsel for  6 the Dominion which intervened for the first time at  7 the judicial committee.  8 My lord, it would be useful if your lordship could  9 have before you the judgment of the judicial  10 committee, and that is found in the plaintiffs  11 authorities, I believe it's volume 9, tab 40, if I  12 may.  13 What I want to do is to trace through the  14 submissions made by counsel for Canada, and to  15 demonstrate, if I can, how these were rejected by the  16 judicial committee.  17 The argument for Canada begins at page 47, and my  18 submission is that the judgment of Mr. Justice Strong  19 was adopted -- substantially adopted in argument by  20 counsel for the Dominion.  At page 47 the counsel said  21 that the -- I think the references I have should begin  22 at page 48.  The first paragraph:  23  24 "Documentary evidence was referred to show the  25 nature and character of the Indian title.  It  26 was contended, that is by counsel, that the  27 effect of it was to show that from the earliest  28 times the Indians had and were always  29 recognized as having a complete proprietary  30 interest.  There was a link between the  31 earliest times,"  32  33 And counsel went on.  34  35 "British and Canadian legislation was referred  36 to show that such complete title had been  37 uniformally recognized and made reference to  38 the Royal Proclamation as having the same force  39 as the statute, under which the lands in suit  40 were reserved to the Indians and absolute  41 proprietary right.  And that the Royal  42 Proclamation following the citation of the  43 statutes, the Proclamation of 1763 was  44 uniformly acted on and recognized by the  45 government as well as the legislature, was  46 regarded by the Indians as their charter.  The  47 only restriction being ..." 27521  Submissions by Mr. Goldie  1  2 THE COURT: The imperfect —  3 MR. GOLDIE:  Yes.  And over at the top, next page 49.  4  5 "The absolute title being on the Indians was  6 ceded by them subject to certain reservations  7 for valuable consideration of the Dominion of  8 the treaty to that effect did not enure the  9 benefit to the province in any way.  The  10 province could not claim property in the land  11 except by virtue of the Act of 1867.  With  12 regards to that Act the lands did not belong to  13 the province prior thereto within Section 109."  14  15 Were not public lands of the province.  16 In short, my lord, the council for the Dominion  17 argued that the beneficial title so often referred to  18 by my friends in their argument was in the Dominion.  19 Now, I cite those arguments to refute the  20 proposition that the Indian position was not as put as  21 high as it is here.  The judgment of Mr. Justice  22 Strong was rejected in toto.  And that appears at --  23 the appeal case 54 in paragraph 2 beginning with the  24 words:  25  26 "It was suggested ..."  27  28 Third of the way up from the bottom of the page.  2 9  THE COURT:  Yes.  30  MR. GOLDIE:  31  32 "It was suggested in the course of argument of  33 the Dominion that inasmuch as the Proclamation  34 recites that the territories thereby reserves  35 for Indians had never been ceded to or  36 purchased by the Crown, the entire property of  37 the land remained with them.  That inference is  38 however at variance."  39  40 And then it is directly addressing the Dominion's  41 argument that absolutely title vested in the Dominion  42 that His Lordship expresses the view that it is of a  43 personal and usufructory nature.  44 Now, the adoption of this view in Guerin will be  45 dealt with by -- a little later.  46 With respect to Mr. Justice Taschereau, and with  47 respect to the proposition that the only question 27522  Submissions by Mr. Goldie  1 before the Court in St. Catherine's was who was to  2 benefit Canada, the province, and that the interest of  3 the Indians was overlooked, I refer to tab 39 in my  4 friend's same volume of documents at page 650 where  5 Mr. Justice Taschereau said in the last paragraph --  6 THE COURT:  Page 650?  7 MR. GOLDIE:  650, yes, my lord, of the — under tab 39.  8 THE COURT:  Quite a long judgment?  9 MR. GOLDIE:  Yes.  10 THE COURT:  Yes.  11 MR. GOLDIE:  Mr. Justice Taschereau put it this way:  12  13 "Were the lands of confederation crown lands or  14 the private property of the Indians, is the  15 abstract question to be determined."  16  17 So in my submission it was certainly clear from  18 the argument that it was the very question of whether  19 the Indians had a proprietary interest in the lands  20 was addressed in both courts.  21 THE COURT:  Is this a convenient place to adjourn?  22 MR. GOLDIE:  Yes.  May we just complete one reference, my lord,  23 that is the answer in the judicial committee was at  24 page 58, and it is the reference which I have already  25 read, and the committee addresses that very point, and  26 it's the last paragraph.  27  28 "Had the Indian inhabitants been the owners in  29 fee simple of the territory which they  30 surrendered, by the Treaty of 1873, Mercer's  31 case might have been an authority for holding  32 that the province of Ontario could derive no  33 benefit from the cession."  34  35 I say, and this is paragraph 3 on page 3 of my  36 addendum, had the acquisition of Indian title required  37 consent, the argument of Canada would have prevailed,  38 namely, a complete proprietary interest limited by an  39 imperfect power of alienation.  And this was answered  40 by the passage the plaintiffs seem to avoid at appeal  41 cases 54, which is dependent on the goodwill of the  42 sovereign.  That was the answer of the judicial  43 committee to the proposition that consent was  44 required.  Perhaps that might be enough, my lord.  45 THE COURT:  All right.  And we'll resume then at 9:30 on Monday.  46 MR. GOLDIE:  Well, I wonder, my lord, if we could start at 9:00.  47 I have been asked to attend a meeting at 4:00 o'clock, 27523  Submissions by Mr. Goldie  1 and if we could go 'til 4:00 o'clock, and then if  2 necessary start at 9:00.  Would that be  3 unsatisfactory, or we could sit in the evening.  4 THE COURT:  I can't sit Monday evening, but I can start at 9:00  5 if that's convenient.  6 MR. GOLDIE:  If that's convenient to my friend.  7 MR. RUSH:  No difficulty.  8 THE COURT:  All right.  9:00 o'clock on Monday.  All right.  9 Thank you.  Wish you all a pleasant weekend.  What's  10 left of it.  11  12 (PROCEEDINGS ADJOURNED AT 12:30 P.M.)  13  14 I HEREBY CERTIFY THE FOREGOING TO BE  15 A TRUE AND ACCURATE TRANSCRIPT OF THE  16 PROCEEDINGS HEREIN TO THE BEST OF MY  17 SKILL AND ABILITY.  18  19    2 0 LORI OXLEY  21 OFFICIAL REPORTER  22 UNITED REPORTING SERVICE LTD.  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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