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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-04-04] British Columbia. Supreme Court Apr 4, 1990

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 23702  Submission by Mr. Jackson  1 April 4, 1990  2 Vancouver, B.C.  3  4 THE REGISTRAR: Order in court.  In the Supreme Court of British  5 Columbia, this 4th day of April, 1990, the matter of  6 Delgamuukw versus Her Majesty the Queen at bar, my  7 lord.  8 THE COURT:  I'm sure that counsel will be interested to know  9 that Chief Justice Dickson tendered his resignation  10 today effective the end of June which saddens us all  11 greatly.  I understand the announcement has been made  12 in Ottawa and it's in the public domains.  I'm not  13 disclosing any confidences that you should feel  14 obliged in any way not to repeat.  15 Mr. Jackson.  16 MR. JACKSON:  Thank you, my lord.  I might just note that the  17 first two references I was going to make were to his  18 lordship's judgments.  19 THE COURT:  That's very appropriate.  20 MR. JACKSON:  My lord, in this part of the argument we are going  21 to be dealing with the development of the fundamental  22 common law principles of aboriginal rights.  I  23 provided your lordship with a copy of the argument.  24 This is the same text as the one which was delivered  25 several weeks ago.  It has been re-formatted, but it  26 is the same text.  27 My lord, in this part of our legal argument we  28 will be tracing the evolution of the legal  29 relationship between the Indian nations and the  30 European governments who have established settlements  31 in North America over the past 400 years.  I'm  32 reading, my lord, from page 1 of the argument.  In  33 doing so, we will be focusing on what we consider to  34 be the central issue in this case, the identification  35 of the fundamental principles upon which we assert  36 aboriginal rights are based.  Now, my lord, this part  37 of the argument is not to be viewed as an exercise in  38 antiquarianism, nor as merely interesting historical  39 background, a prologue to the real issues.  In the  40 same way as the plaintiffs have presented evidence of  41 the history of the Gitksan and Wet'suwet'en people, to  42 enable this court to understand the development of the  43 fundamental principles by which their societies are  44 ordered and to determine the scope and content of  45 their aboriginal rights, the legal history which we  46 will be introducing in our legal argument is intended  47 to identify the fundamental principles upon which the 23703  Submission by Mr. Jackson  1 Gitksan and Wet'suwet'en rights to ownership and  2 jurisdiction can be recognized under Canadian law.  3 It is the plaintiffs' submission that this court,  4 once it has identified those fundamental principles,  5 the principles upon which the legal relationship  6 between Indian nations and the Crown evolved, and how  7 those have been embodied in the common law and in the  8 Royal Proclamation of 1763, can give constitutional  9 recognition to those principles through the vehicle of  10 section 35.  11 My lord, the Supreme Court in the judgment written  12 by Chief Justice Dickson in its pronouncements on the  13 Charter has clearly mandated the search for  14 fundamental principles and purposes in interpreting  15 the meaning of Charter rights, and has endorsed the  16 importance of an historical analysis to this purposive  17 approach.  And on page 2, my lord, I cite from his  18 lordship's judgment in Big M Drug Mart.  I don't think  19 I need to repeat that to your lordship.  The courts,  20 in particular British Columbia Court of Appeal, has  21 affirmed that an historical purposive and remedial  22 approach, which is applicable to Charter rights, is no  23 less applicable to cases in which aboriginal rights  24 recognized and affirmed by section 35 are in issue.  25 On page 3, my lord, I refer to the judgment of the  26 Court of Appeal in Sparrow.  27 Recent Supreme Court jurisprudence is not only  28 important in affirming the historical purposive  29 approach to the interpretation of fundamental rights,  30 but it is also of significance in demonstrating that  31 limited interpretations which were given to certain  32 concepts prior to 1982 may not be appropriate, given  33 the entrenchment of those rights in the constitutional  34 document.  And I refer, my lord, to the Therens case.  35 A third proposition which the Supreme Court has  36 identified in its Charter jurisprudence is that in  37 relation to the Charter the courts have very clearly  38 said that the function of constitutional protection is  39 "the unremitting protection of individual rights and  40 liberties".  And it is the plaintiffs' submission that  41 this same approach is necessary to the protection of  42 the collective rights of aboriginal peoples.  And, my  43 lord, at page 4 I identify how certain fundamental  44 freedoms and liberties which are recognized both by  45 the common law and by the Charter are designed to  46 protect the integrity of the person, the integrity of  47 one's home, in relation to such fundamental rights as 23704  Submission by Mr. Jackson  1 the freedom from unreasonable search.  Others are  2 designed to protect the integrity of the democratic  3 process, for example, freedoms of assembly and speech.  4 And in the same way, my lord, the plaintiffs submit  5 that the aboriginal rights recognized and affirmed in  6 section 35 are designed to protect the fundamental  7 freedom of aboriginal peoples to the integrity of  8 their homelands and the distinctive institutions  9 around which their society is organized.  10 Now, my lord, and I depart here from the text,  11 before embarking on an historical purposive analysis,  12 it may be helpful to the court to understand a crucial  13 point of departure between the plaintiffs and the  14 defendants, at least the provincial defendants.  I  15 understand that the federal defendants are in fact  16 filing their summary of argument this morning.  But in  17 terms of the --  18 THE COURT:  They needn't bother.  I haven't been able to read  19 yours yet, let alone Mr. Goldie's.  20 MR. JACKSON:  Delivering it to us I think, my lord, is an  21 appropriate term.  22 THE COURT:  I'm way behind.  23 MR. JACKSON:  The provincial defendant, my lord, says that  24 aboriginal rights are dependent upon the goodwill of  25 the sovereign.  And to find out what the aboriginal  26 rights of the plaintiffs are, this court need only  27 look at the particular history of the mainland colony  28 of British Columbia and determine how that goodwill  29 was exercised.  They say that acts of the colony  30 translated a matter of political grace into a matter  31 of legal entitlement in the form of recognizing and  32 created an interest of the native peoples in their  33 occupied village sites and cultivated fields, their  34 reserves.  35 Our position is quite different.  We say that  36 aboriginal rights are pre-existing rights which are  37 not dependent upon the goodwill of the sovereign.  We  38 say that an understanding of the content of aboriginal  39 rights and the manner in which they may be  40 extinguished requires a broad examination of the  41 history of the relationship between the Crown and  42 aboriginal peoples.  And we say that arising out of  43 that historical relationship there evolved fundamental  44 principles, those principles ripened into rules of the  45 common law, and those principles were reflected and  46 embodied in the Royal Proclamation, and that those  47 principles flowed into British Columbia. 23705  Submission by Mr. Jackson  1 And in the material that follows, my lord, I would  2 ask you to consider the extent to which the conduct of  3 the Crown is better characterized as one of grace or  4 whether one of recognizing legal entitlement.  5 I'm turning now to page 5 of the argument, my  6 lord.  In charting a course in the historical,  7 purposive analysis of aboriginal rights, there are  8 good reasons to start with the period of Spanish  9 colonization.  That might seem, my lord, at first  10 glance to be a rather strange statement, given the  11 geographical distance from the original Spanish period  12 of colonization.  But although the Spanish discovery  13 of the New World centred on the Caribbean and then  14 Central and South America, it was in the context of  15 Spanish exploration and colonization that the issue of  16 aboriginal rights was first formally debated in legal  17 terms.  One of the principal protagonists in that  18 debate was Francisus de Vitoria, sometimes, my lord,  19 spelled as Vitoria.  One of its principal products was  20 his treatise "On The Indians Lately Discovered".  De  21 Vitoria's work is regarded as not only establishing  22 the foundations of modern international law, but more  23 importantly, for the purposes of our argument, the  24 source of some of the elements of the modern law of  25 aboriginal rights.  26 And the second reason why we are embarking on it  27 at this juncture, my lord, is that the Spanish debate  28 illustrates that legal theories regarding the rights  29 of aboriginal peoples are integrally related to  30 assumptions and assertions about the nature of  31 aboriginal societies.  This, it is submitted, is an  32 important connection not merely of historical  33 interest, but one of contemporary significance in the  34 legal adjudication of aboriginal rights.  35 Now, when Europe emerged from the Dark Ages and  36 entered the Age of Discovery in the 15th century, the  37 papacy had already established a long series of  38 precedents to support its claims of universal  39 territorial jurisdiction.  40 I'm moving to page 6, my lord, second paragraph.  41 Early in the 15th century the Pope made grants to  42 Portugal of title and trade monopolies on the African  43 Gold Coast.  This papal grant to Portugal for monopoly  44 on African trade, backed by the threat of  45 excommunication, left Spain with little recourse but  46 to satisfy its dynastic and colonial aspirations by  47 going beyond the reach of this bull. 23706  Submission by Mr. Jackson  1 And at this point, my lord, we come to the event  2 much celebrated, in fact in 1992 it will be the 500th  3 anniversary of Christopher Columbus' first voyage to  4 the New World.  5 And following Christopher Columbus' first voyage  6 to the New World in 1492, the Spanish Crown sought  7 papal confirmation of its titles to the new found  8 territory.  And the first papal bull, Inter Caetera  9 Divini, issued in 1493, declared that whereas Columbus  10 had come upon lands and people "undiscovered by  11 others ... well-disposed to embrace the Christian  12 faith", all the lands discovered or to be discovered  13 in the name of the Spanish Crown in the region legally  14 belonged to King Ferdinand and Queen Isabella.  The  15 second version of Inter Caetera in 1493 established  16 the famous north to south papal line of demarcation  17 for the entire western hemisphere, ceding nearly all  18 of North and South America to Spain, reserving for  19 Portugal a fraction of the South American continent  20 now constituting Brazil.  21 After investing Ferdinand and Isabella with "full,  22 free, and integral power, authority and jurisdiction",  23 the bull forbade any other person from approaching  24 Spain's newly recognized possessions or future  25 possessions for the purposes of trade or any other  26 reason under penalty of excommunication.  27 The first colonizing expedition to the New World  28 was led by Christopher Columbus on his second voyage  29 to the Indies, in November 1493.  Under the terms of  30 his royal contract, Columbus was to keep one-tenth of  31 the wealth engendered by his partnership with the  32 Crown.  Upon landing, he immediately set to establish  33 a Portugese-style factoria, a trading post, on the  34 Caribbean island of Hispaniola.  When original  35 estimates of mineral wealth proved dismally incorrect,  36 Columbus began the export of the island's only  37 apparently abundant commodity, Indian slaves.  Thus  38 within three years of colonization of North America,  39 my lord, slavery was introduced into Central America.  40 The natives hostile resistance to enslavement made  41 peaceful barter impossible.  Backed by Spanish arms,  42 cavalry and dogs, Columbus enforced a tribute system  43 whereby the Indian tribal headmen were to see that  44 each Indian male delivered 25 ducats worth of gold on  45 a quarterly basis to the Spanish factoria.  When  46 significant amounts of gold were finally discovered on  47 Hispaniola in 1499, the ensuing large scale pit-mining 23707  Submission by Mr. Jackson  1 created huge demands for manual labour.  Columbus  2 instituted a wide-ranging forced labour system  3 "commending" squads of Indians to the Spanish mine  4 owners who had successfully courted or bought the  5 Royal Governor's favour.  Not surprisingly, these  6 practices led Queen Isabella to rescind Columbus'  7 contract in 1500.  8 My lord, I might note that that account may  9 perhaps explain why 1992 is not an event which the  10 native peoples of the world are going to be joining in  11 celebrating.  12 By 1512 an ever diminishing supply of Indian  13 labour forced Ferdinand to commission expeditions to  14 other regions of the Caribbean to search for new  15 sources of slave labour for the mines. This  16 intra-Caribbean importation of Indian slaves, however,  17 awakened a new force in opposition to the initial  18 thrust of Spanish imperial administration.  And in  19 1508, fifteen Dominican friars were sent to  20 Hispaniola.  Arriving on the island in 1510, the  21 Dominicans quickly perceived the debilitating effects  22 of Spanish rule and enslavement on the Indian  23 population.  24 And on page 9, my lord, there is a quotation from  25 one of the Dominican friars, and the third line of  26 that quotation is important.  The Francisan Dominicans  27 inquired:  28  29 "Tell me..."  30  31 And this is addressed to the Spanish.  32  33 " what right or justice do you keep these  34 Indians in such a cruel and horrible servitude?  35 On what authority have you waged a detestable  36 war against these people...?"  37  38 My lord, in his introduction my colleague, Mr.  39 Rush, raised a similar question in relation to how the  40 province justifies by what right or title, by what  41 right or justice do they explain to Bazil Michell how  42 it is that he was dispossessed of his territory in  43 this century, not in 1510.  44 THE COURT:  Just a moment, please, Mr. Jackson.  Thank you, Mr.  45 Jackson.  46 MR. JACKSON:  The last paragraph.  47 MR. GOLDIE: Needless to say, my lord, I will answer that 2370?  Submission by Mr. Jackson  1 question.  2 THE COURT:  All right.  3 MR. JACKSON:  Legitimated by papal grant and supported by Indian  4 enslavement, Spain's colonial empire represented a  5 moral, legal, and theoretical affront to the Spanish  6 Renaissance consciousness that was emerging in the  7 late 15th and 16th centuries.  Increasingly, natural  8 law and natural law ideas, originating from the  9 teachings of Thomas Aquinas, were called upon by  10 Spanish humanist thinkers to attack the foundation of  11 the Crown's papally grounded hegemony in the Indies.  12 In attacking the Spanish colonial system, these  13 humanist theorists focused on the central tenet of  14 Thomistic philosophy that all men possess the common  15 element of human reason and that this divine gift  16 conferred on all men, including non-Christian  17 societies, the natural law, right and duty to order  18 rationally their political and social lives.  19 I'm turning now to page 11, my lord.  The most  20 important and influential of the Spanish humanist  21 writers was Franciscus de Vitoria, a Dominican scholar  22 and the first Spanish thinker to systematically apply  23 Thomistic natural law theory to the relationships  24 between states.  25 The last paragraph on page 11, my lord.  Vitoria's  26 most important work on Indian rights is contained in  27 the lecture he delivered at the University of  28 Salamanca in 1532 entitled "On the Indians Lately  29 Discovered".  The principal arguments of Vitoria were,  30 firstly, the original inhabitants of the Indies  31 possessed natural, legal rights as free and rational  32 men; secondly, the Pope's grant to Spain of title to  33 the Indies was baseless and could not affect the  34 inherent rights of the Indians; and thirdly, the  35 transgressions of the Law of Nations by the Indians  36 might serve to justify Spanish conquest.  37 Now, as to the first argument, Vitoria, utilizing  38 Roman concepts of natural law, Thomistic philosophy  39 canon law and holy scripture, argued that the Indians  40 of the Americas were rational beings and therefore  41 could claim the same natural rights possessed by  42 virtue of their humanity which any Christian European  43 might claim.  By virtue of these natural rights they,  44 I'm quoting, "were true owners alike in public and  45 private law before the advent of the Spaniards among  4 6 them".  47 And I emphasize, my lord, the word true owners. 23709  Submission by Mr. Jackson  1 Not true users and occupiers, but true owners.  2 Vitoria clearly would have no truck with the  3 province's argument that these rights were created by  4 the Crown.  They were rights which existed before the  5 advent of the Spaniards.  They were pre-existing  6 rights; a concept, my lord, in which Vitoria presaged  7 the characterization of Chief Justice Dickson in  8 Guerin that aboriginal rights are pre-existing rights.  9 And "Just like Christians ... neither their princes nor  10 private persons could be despoiled of their property"  11 without just cause.  12 Vitoria specifically rejected the idea that  13 discovery could vest property rights in the Spanish  14 Crown in opposition to the pre-existing rights of the  15 Indians.  And I would refer your lordship to Exhibit  16 1249, tab 1.  It's an exhibit for identification, and  17 it is the text of Vitoria's lectures at Salamanca  18 reprinted in a version under the general head of "The  19 Classics of International Law".  And this particular  20 passage, my lord, in tab 1 is at page 139.  And  21 perhaps I should explain to your lordship that I have  22 in the body of this written argument included the full  23 text of any citations upon which the plaintiffs are  24 relying and, subject to your lordship's wishes, I,  25 apart from a few occasions where I will take you to  26 the exhibit, I will be relying upon the citation as it  27 appears in the body of the text.  2 8    THE COURT:  Thank you.  29 MR. JACKSON:  At page 139, my lord, of tab 1 in the second  30 paragraph beginning "Not much".  31 THE COURT:  Yes.  32 MR. JACKSON:  The second sentence of that, in relation to the  33 asserted right of discovery.  34  35 "Now, the rule of the law of nations is that  36 what belongs to nobody is granted to the first  37 occupant, as is expressly laid down in the  38 aforementioned passage of the Institutes"  39  40 And that is Justinian's Institutes, my lord.  41  42 "And so, as the object in question was not  43 without an owner, it does not fall under the  44 title which we are discussing.  Although then  45 this title, when conjoined with another, can  46 produce some effect here, yet and by itself it  47 gives no support to a seizure of the aborigines 23710  Submission by Mr. Jackson  1 any more than if it had been they who had  2 discovered us."  3  4 Page 13, my lord, the first part of "On The  5 Indians Lately Discovered" represented Vitoria's  6 humanist-inspired appeal for recognition of legal  7 equality between the Indian and the Christian  8 European.  His argument was aimed at refuting the  9 medieval thesis on the requisite qualifications for  10 human dominion and ownership of property.  Central to  11 the Christian medieval consciousness was the idea  12 developed during the Crusades that property, both  13 chattel and real, like all forms of earthly dominion,  14 derived from God's grace.  15 My lord, the defendants have given that assertion  16 a contemporary ring.  They say that the rights of the  17 Indians derived not from God's grace, but from the  18 province's.  Vitoria and the plaintiffs join in  19 refuting both propositions.  20 MR. GOLDIE: My lord, I don't want to interrupt my friend, but  21 the province has no constitutional authority with  22 respect to the Indians since 1871.  I don't know what  23 my friend is talking about.  24 MR. JACKSON:  Well, my lord, I will address that in due course.  25 I was seeking to characterize as faithfully as I could  26 the province's position that aboriginal rights are  27 created by Crown practice, they derive from the  28 pleasure of the Crown, and --  29 THE COURT:  Well, I'm not going to stop you, Mr. Jackson.  Your  30 friend has made an observation and if you think it  31 useful to respond to it you may do so, and I suppose  32 you may just carry on.  33 MR. JACKSON:  Thank you, my lord.  34 THE COURT:  I think I will not encourage a debate at this point.  35 MR. JACKSON:  My lord, under this theory of property deriving  36 from God's grace, because the infidels and pagans  37 denied the Christian God's existence, no unbeliever  38 could exercise true control over property.  And that  39 in fact explained why the Pope could make grants to  40 Christian princes to claim in the Pope's name that  41 which was rightfully his.  42 Now, in his lecture, Vitoria disposed of the  43 medieval argument as applied to the indigenous people  44 in the following way.  This is at the bottom of page  45 13.  46  47 "Unbelief does not destroy either natural law or 23711  Submission by Mr. Jackson  1 human law, but ownership and dominion are based  2 either on natural law or on human law;  3 therefore, they are not destroyed by want of  4 faith...Hence, it is manifest that it is not  5 justifiable to take anything that they possess  6 from either Saracens or Jews or other  7 unbelievers as such, that is, because they are  8 unbelievers."  9  10 On page 15, as the Indians were free according to  11 natural and divine law, no human law, whether issued  12 by priests or king, could bind them without their  13 consent.  Such a law "would be void of effect,  14 insomuch as law presupposes jurisdiction... The law  15 could not bind one who was not previously subject to  16 it".  And, again, my lord, the words of ownership and  17 jurisdiction ring through this first memorial to the  18 rights of the aboriginal peoples.  19 Vitoria drew a distinction between the assertion  20 of European sovereignty and the pre-existing rights of  21 ownership of aboriginal peoples.  And he said:  22  23 "Granted that the Emperor were the lord of the  24 world, still that would not entitle him to  25 seize the provinces of the Indian aborigines  26 and erect new lords there and put down the  27 former ones or take taxes.  The proof is  28 herein, namely, that even those who attribute  29 lordship over the world to the Emperor do not  30 claim that he is lord in ownership, but only in  31 jurisdiction, and this latter right does not go  32 so far as to warrant him in converting  33 provinces to his own use or in giving towns or  34 even estates away at his pleasure.  This, then,  35 shows that the Spaniards cannot justify on this  36 ground their seizure of the provinces in  37 question."  38  39 And in this passage, my lord, Vitoria laid the  40 foundations for what later would be termed the  41 doctrine of continuity; that the assertion of  42 sovereignty by European state does not affect the  43 pre-existing property rights of the original peoples.  44 The doctrine of continuity was most recently  45 reaffirmed in the Canadian context by Chief Justice  46 Dickson in Guerin.  47 At the bottom of page 16, my lord.  The efforts of 23712  Submission by Mr. Jackson  1 Vitoria and his contemporaries in speaking out against  2 the practices of the conquistadores and the  3 enslavement of the Indians and in affirming the rights  4 of indigenous peoples, bore fruit in the form of the  5 papal bull Sublimis Deus promulgated by Pope Paul III  6 on June the 4th, 1537, just two years after  7 publication of Vitoria's treatise.  And that is in  8 Exhibit 1249, tab 2, my lord, and it states in part:  9  10 "The Indians are truly men...the said Indians  11 and all other people who may later be  12 discovered by Christians, are by no means to be  13 deprived of their liberty or the possession of  14 their property, even though they be outside the  15 faith of Jesus Christ; and that they may and  16 should, freely and legitimately, enjoy their  17 liberty and the possession of their property;  18 nor should they be in any way enslaved; should  19 the contrary happen it shall be null and of no  20 effect."  21  22 My lord, the contemporary significance of Sublimis  23 Deus is perhaps made manifest by the fact that when  24 the Pope visited Canada several years ago the  25 aboriginal peoples of Canada pointed to the precedent  26 of Sublimis Deus in asking His Holiness to speak out  27 and, as it were, renew the commitment of the Roman  28 Catholic Church to the affirmation of the rights of  29 aboriginal peoples not only in Canada but in other  30 parts of the world.  31 THE COURT:  That of course begs the question, doesn't it?  32 MR. JACKSON:  Whether they have rights?  33 THE COURT:  Well, what are the rights about which one is to  34 speak out.  35 MR. JACKSON:  Yes, my lord, His Holiness did not seek to provide  36 your lordship with clear guidance as to how your  37 lordship should rule.  38 THE COURT:  I wish he had.  39 MR. JACKSON:  I should say, my lord, however, His Holiness did  40 indicate that he thought the right to self-government  41 or jurisdiction was an important component, but again,  42 our precedence, my lord, will be of a different order  43 before your lordship in this court.  44 The publication of Vitoria's lecture and the  45 promulgation after Sublimis Deus did not, however,  46 bring to an end the debate about the legal and moral  47 legitimacy of Spanish colonization.  And, indeed, the 23713  Submission by Mr. Jackson  1 vitality of the debate culminated in one of the most  2 remarkable, but largely forgotten, event in the  3 history of European colonization, the meeting of the  4 Junta or Council summoned by the Emperor Charles the V  5 in Valladolid in 1550-51, to consider the justice of  6 the wars being waged by Spain in America.  What is  7 unique about the event is that, for the first time in  8 history, a nation and her king initiated discussions  9 concerning the justice of a war that was being waged.  10 Moreover, and again for the first time in history, the  11 emperor ordered a provisional halt to the military  12 campaigns in America.  13 And I suppose, my lord, one might regard the  14 Emperor Charles the V's order as a omnibus interim  15 injunction, not unlike perhaps the injunctions which  16 this court and other courts of British Columbus have  17 issued in relation to the aboriginal rights while in  18 fact the merits of those rights in fact are debated  19 and argued in the context of a legal forum.  20 THE COURT:  This is Charles the V of Spain is it?  21 MR. JACKSON:  Yes, my lord.  22 THE COURT:  Yes.  Okay.  23 MR. JACKSON:  The Valladolid Council took the form of a legal  24 disputation between, on the one hand, Juan Gines de  25 Sepulveda, one of Spain's leading philosophers and  26 theologians and confessor of the emperor, and on the  27 other side Bartolome de Las Casas, the former  28 conquistador turned Dominican friar and later bishop  29 who was appointed defender of the Indians by offical  30 decree of the emperor.  The central issue debated  31 before the Council at Valladolid was the legality and  32 justice of waging war to propagate Christianity  33 amongst the indigenous people of the New World.  34 And I've quoted on page 18 how a contemporary  35 scholar, Professor Angel Losada, has characterized the  36 points of difference between Sepulveda and Bartoleme  37 de Las Casas .  38  39 "Both men believed it was necessary to preach  40 the Christian faith in the New World; both  41 agreed the New World had to come under the  42 jurisdiction of the Spanish kings; but for Las  43 Casas these ends could be achieved or served  44 only by peaceful means, following the method he  45 had employed in Verapaz..."  46  47 And Verapaz was a village which Las Casas had 23714  Submission by Mr. Jackson  1 established as a model community.  2  3 "...and always with the free consent of the  4 Indians and their princes, who preserved their  5 jurisdictions under a protectorate of a  6 Christian emperor."  7  8 And my lord, you will see as we move through the  9 plaintiffs' argument that the idea of Indian consent,  10 the idea of a Crown protectorate, the idea of a  11 continuing Indian jurisdiction, are what we say are  12 fundamental principles which we urge upon this court.  13 They were principles which were identified in 1550.  14 They are not the brainchild of lawyers.  They, in  15 fact, reflect some long-standing and fundamental  16 conceptions.  17  18 "For Sepulveda, on the other hand, all this was  19 a Utopian dream; force must be applied to  20 achieve those ends."  21  22 What is significant, my lord, about this debate is  23 that one of the principal arguments of Sepulveda for  24 justifying war against the Indians in order to convert  25 them was that the Indians of the New World were in  26 such a state of barbarism that force was required to  27 liberate them from this condition.  They were, in  28 fact, in Aristotle's terms, slaves by nature.  29 Underlying Sepulveda's views were his views on the  30 inherent inferiority of indigenous people.  And  31 Sepulveda expressed this in several passages.  Page  32 19, my lord, in the second quote is the one I would  33 refer you to, and this is what he said:  34  35 "Now compare their..."  36  37 The Spanish.  38  39 " of prudence, talent, magnanimity,  40 temperance, humanity and religion with those  41 little men in whom you will scarcely find  42 traces of humanity; who not only lack culture  43 but do not even know how to write, who keep no  44 records of their history except certain obscure  45 and vague reminiscences of some things put down  46 in certain pictures, and who do not have  47 written laws but only barbarous institutions 23715  Submission by Mr. Jackson  1 and customs."  2  3 Las Casas, in seeking to refute Sepulveda's views  4 that the Indians in some Aristotelian view were fit  5 only for slavery and subjection to a more civilized  6 order, called upon his extensive experience of the  7 Indians and stated:  8  9 "Even though they lack the art and use of  10 writing, they are not wanting in the capacity  11 and skill to rule and govern themselves, both  12 publicly and privately.  Thus, they have  13 kingdoms, communities and cities that they  14 govern wisely according to their laws and  15 customs ... therefore, not all barbarians are  16 irrational or natural slaves or unfit for  17 government.  Some barbarians, then, in  18 accordance with justice and nature, have  19 kingdoms, royal dignities, jurisdiction, and  2 0 good laws, and there is among them lawful  21 government."  22  23 Now, my lord, there was no formal resolution of  24 the controversy at Valladolid, but in 1556 the  25 Requerimiento, which was a document the Spanish would  26 read to indigenous people calling upon them in the  27 name of the Christian princes to give themselves up to  28 Christianity, read to them of course in Latin or  29 Spanish, and upon the Indians not in fact complying,  30 that was legal cause for a just war.  In 1556 the  31 Requerimiento was abolished and in 1573 a Royal Order  32 was promulgated mandating that only peaceful methods  33 be used in converting the Indians.  34 Now, my lord, at page 21 we say that the relevance  35 of these remarkable events in Spain over 400 years ago  36 to the resolution of the issues before this court is  37 that it clearly demonstrates that legal theories  38 regarding the rights of aboriginal peoples both as to  39 jurisdiction and ownership of property were intimately  40 connected with assumptions and assertions about the  41 nature of aboriginal peoples and societies.  42 THE COURT:  I'm sorry, Mr. Jackson, but I don't seem to have a  43 page 21.  Oh, yes, I do.  It's three pages further.  I  44 found it.  Thank you.  45 MR. JACKSON:  My apologies for that, my lord.  46 The relevance of these remarkable events in Spain  47 over 400 years ago to the resolution of the issues 23716  Submission by Mr. Jackson  1 before this court is that it clearly demonstrates that  2 legal theories regarding the rights of aboriginal  3 people both as to jurisdiction and ownership of  4 property were intimately connected with assumptions  5 and assertions about the nature of aboriginal peoples  6 and societies.  So to the extent that advocates such  7 as Sepulveda could assert that Indians were little  8 more than animals outside the pale of civilization so  9 it followed, as a matter of law, that they were  10 without rights and their territories were subject to  11 lawful invasion.  To those like Vitoria and Las Casas,  12 who respected Indian peoples and recognized their  13 civilizations as entitled to the fundamental rights  14 enjoyed by European Christian nations, it followed as  15 a matter of natural and international law that their  16 rights to territorial integrity be respected.  17 The papal bull Sublimis Deus and the writings of  18 Vitoria and Las Casas had been intended to repudiate  19 the concept that Indian populations could be denied  20 rights to liberty and property by virtue of their  21 differences from European societies and their location  22 on a supposed hierarchy of civilization.  However, my  23 lord, over the course of the last 400 years, this  24 concept of a supposed hierarchy of civilizations has  25 reasserted itself and we will have occasion to see its  26 reformulation in a number of the cases which have been  27 argued both in the United States and Canadian courts.  28 At page 22, my lord.  In our opening statement to  29 the court we asserted to your lordship that this  30 assumption of a hierarchy of civilizations with native  31 peoples at the lower end of the scale and European  32 derived civilizations at the upper echelons was a  33 position which offers persistent, powerful, and  34 ultimately distorting conclusions, as to the real  35 nature of Indian society.  The need to overcome this  36 tendency to view aboriginal societies aa existing at  37 an earlier stage of evolutionary development has been  38 clearly affirmed in recent decisions of the Supreme  39 Court of Canada.  40 And at page 22, my lord, I refer to the way in  41 which Mr. Justice Hall in Calder referred to the  42 statements by Chief Justice Davey in the Court of  43 Appeal.  And I will be coming back to those statements  44 later on, my lord.  45 At this point I would like, however, to refer your  46 lordship to the similar statements made by Chief  47 Justice Dickson in the Simon case in which he referred 23717  Submission by Mr. Jackson  1 to a previous judgment of His Honour Judge Patterson  2 in the 1928 case of Syliboy in which Judge Patterson  3 addressed the question of the capacity of the Indians  4 of Nova Scotia to enter into a treaty in the following  5 terms:  6  7 "The civilized nation first discovering a  8 country of uncivilized people or savages..."  9  10 This could in fact be Sepulveda, my lord.  11  12 "...held such country as its own until such time  13 as by treaty it was transferred to some other  14 civilized nation.  The savages' rights of  15 sovereignty, even of ownership were never  16 recognized...In my judgment, the treaty of 1752  17 is not a treaty at all and is not to be treated  18 as such; it is at best a mere agreement made by  19 the Governor-in-Council with a handful of  20 Indians..."  21  22 Chief Justice Dickson, in rejecting Judge  23 Patterson's conclusions on Indian capacity as being  24 not convincing, commented that:  25  26 "The language used by Patterson, J. illustrated  27 in this passage reflects the biases and  28 prejudices of another era in our history.  Such  29 language is no longer acceptable in Canadian  30 law and, indeed, is inconsistent with the  31 growing sensitivity to native rights in  32 Canada."  33  34 My lord, in many ways the juxtapostion of the  35 views of Judge Patterson and Chief Justice Dickson in  36 many ways mirrors the divergence of ideas on Indian  37 capacity reflected in the debate at Valladolid some  38 four centuries before.  39 It is the plaintiffs' submission that this court  40 must give particular and careful scrutiny to judgments  41 of courts of law and statements by government  42 officials which proceed from racist and superiorist  43 assumptions about the nature of the Indian societies.  44 And we hope, my lord, in the course of the next  45 several weeks, in referring to previous cases, both in  46 Canada, in the United States, decisions of the Privy  47 Council, that your lordship be vigilant to that 2371?  Submission by Mr. Jackson  1 concern.  2 Now, my lord, at page 25 -- on page 25, my lord,  3 we set out a statement of the principles which we say  4 emerged which governed the legal and political  5 relationships between aboriginal peoples of North  6 America and the Crown in the early colonial period.  7 And, yes, on Monday Mr. Rush, in outlining our  8 argument, read to you, my lord, these passages.  And,  9 subject to your lordship's wishes, I wasn't going to  10 read them through again, except to note you'll see, my  11 lord, under "2" that we say that those principles  12 acknowledged pre-existing rights of ownership and  13 jurisdiction, that relationships were to be made  14 through a treaty, public treaty protocol; that changes  15 in territorial arrangements could only be made with  16 Indian consent, and that the rights of the Crown were  17 preemptive rights to acquire rights to the soil and to  18 jurisdiction; and that in entering into relationships  19 with the Crown, the Crown assumed a protectorate  20 relationship to prevent Indian nations against frauds  21 and abuses of other European nations and of their own  22 citizens.  23 At page 26 we say, my lord, that these fundamental  24 principles "ripened into well-established rules of the  25 common law".  It's a statement to which I will come  26 back at some length next week, my lord, in dealing  27 with the judgment of Mr. Justice Strong in St.  28 Catherine's Milling.  29 We say that these fundamental principles were  30 recognized as part of the common law applicable to  31 British colonies in decisions of the United States  32 Supreme Court in the 19th century.  And, again, my  33 lord, at some length I will be embarking upon an  34 analysis of those cases.  For the time being I would  35 refer your lordship, however, to the statement of  36 Chief Justice Marshall in Worcester v. Georgia in 1832  37 where his lordship, addressing himself to the early  38 British colonial charters which granted the soil to  39 British subjects, stated:  40  41 "The extravagant and absurd idea that the feeble  42 settlements made on the sea-coast or the  43 companies under whom they were made, acquired  44 legitimate power by them to govern the  45 people..."  46  47 That's the aboriginal people. 23719  Submission by Mr. Jackson  1  2 "...did not enter the mind of any man.  They  3 were well understood to convey the title which,  4 according to the common law of European  5 sovereigns respecting America, they might  6 rightfully convey, and no more.  This was the  7 exclusive right of purchasing such lands as the  8 natives were willing to sell.  The Crown could  9 not be understood to grant what the Crown did  10 not affect to claim, nor was it so understood.  11  12 Certain it is, that our history furnishes no  13 example, from the first settlement of our  14 country of any attempt on the part of the Crown  15 to interfere with the internal affairs of the  16 Indians, farther than to keep out the agents of  17 foreign powers who, as traders or otherwise,  18 might seduce them into foreign alliances.  The  19 king purchased their lands when they were  20 willing to sell at a price they were willing to  21 take; but never coerced a surrender of them."  22  23 At page 27, my lord, we say, propositions 4 and 5,  24 that these fundamental principles of the common law  25 were recognized and affirmed by the Royal Proclamation  2 6 of 17 63 and were implemented both as fundamental  27 principles and as part of the Proclamation in other  28 parts of Canada.  Those propositions were the subject  29 of later argument, my lord.  30 At page 28, my lord, I begin an analysis of the  31 early state practice in what is now North America  32 starting with the Dutch and Swedish colonial practice.  33 And I say, my lord, that from the earliest stages of  34 colonial settlement in North America, treaties and  35 agreements were entered into with Indian nations, the  36 acquisition of territory, and jurisdiction.  The  37 process was initiated by the Dutch after Henry Hudson  38 discovered Delaware Bay in 1609.  39 And I say, my lord, that the state practice of the  40 Dutch is of importance for two reasons.  First, the  41 great Dutch international law scholar, Hugo Grotius,  42 in his works, drew extensively upon the scholarship of  43 Francisus de Vitoria regarding the rights of the  44 Indians to property, and this in turn is reflected in  45 the Dutch colonial practice.  And the second reason,  46 my lord, is that the Dutch practice of treaty making  47 was continued by the English colonists when they took 23720  Submission by Mr. Jackson  1 over the region from the Dutch in 1664.  2 Now, the Dutch West India Company, my lord, was  3 chartered in 1621 to carry on Indian trade in what is  4 now New York and Delaware, and it sought to speed up  5 the process of colonization by letting its members  6 establish colonies or patroonships.  In the area where  7 he was authorized to have an estate, a patroon was to  8 buy the land from the Indians and then to have his  9 grant registered and confirmed by the governor and  10 Council in New Netherland.  11 At page 29, my lord, Samuel Godyn, a leading  12 member of the company, was among the first to  13 undertake such a venture.  On June the 1st, 1629, and  14 the date is significant, my lord, in that this is, so  15 far as my researchers have been able to trace, one of  16 the very first Indians deeds for land in North  17 America.  On June the 1st, 1629 an agent of Godyn met  18 with a full Council of the Sickoneysincks and bought  19 from them a large tract extending from Cape Henlopen  20 for some 30 miles towards the mouth of the Delaware  21 River.  Because their Sakmah or king was a minor, two  22 of the Indian councillors were delegated to go to the  23 Director Council of New Netherland, in Manhattan, to  24 acknowledge and confirm the transaction, which they  25 did on July the 15th, 1630.  26 And, my lord, the confirmatory pattern to Samuel  27 Godyn is set out in Exhibit 1244 which I would ask  28 your lordship to briefly look at, tab 3.  My lord, I  29 should advise you and advise my friends that this  30 document is, as are most of the other documents in  31 Exhibit 1244, are drawn from a collection of documents  32 under the general heading of "Early American Indian"  33 documents.  It's a recent publication by a group of  34 distinguished American scholars who have, as it were,  35 called to mind the historical archival records, not  36 just in the United States but throughout North America  37 and parts of Europe, and sought to put together a  38 compendium of deeds, documents, treaties, council  39 deliberations, from the first days of settlement up  40 until the late 18th century.  Many of these documents,  41 my lord, have never been published before and were  42 made available, as it were, to scholars for the first  43 time only in the last few years.  This was one of the  44 documents, my lord, I had never seen before until  45 quite recently.  And it is a remarkable document, my  46 lord, in some ways.  I did not draft it, I did not  47 translate it, and yet, my lord, you'll see in the 23721  Submission by Mr. Jackson  1 document some language which in many ways is tracked  2 by the plaintiffs' statement of claim.  3 And I have set out, my lord, at page 30 in the  4 body of my text the language of this document.  It may  5 be easier for your lordship's reference to go back to  6 page 30, and you'll see that I've underlined some  7 portions.  The document starts:  8  9 "We, the Director and Council in New Netherland,  10 residing on the Island Manahattas and in Fort  11 Amsterdam, under the authority of their High  12 Mightinesses the Lords States General of the  13 United Netherlands ... hereby acknowledged and  14 declare, that on this day, the date  15 underwritten, came and appeared before us, in  16 their proper persons, Queskakous and Eesanques  17 Siconesius and the inhabitants of their village  18 ,...and freely and voluntarily declared by  19 special authority of the rulers and consent of  20 the Commonalty there,"  21  22 That, my lord, in another version of the deed is  23 translated as "community".  24  25 "That they already, on the first day of the  26 month of June the past year, 1629, for and on  27 account of certain parcels of cargoes ... have  28 transported, ceded, given over and conveyed in  29 just, true and free property... for the behoof  30 of Messrs. Samuel Godyn and Samuel Blommart  31 absent;"  32  33 And then to the very bottom of the page, my lord,  34 we have:  35  36 "Without they, the grantors, having, reserving,  37 or retaining for the future any, the smallest  38 part, right, action or authority, whether of  39 property, command or jurisdiction therein..."  40  41 And a second version, my lord, of this patent  42 translates the original Dutch in these terms.  43  44 "...without that they, the conveyors, shall  45 have, reserve or keep in the least degree any  46 particle of claim, right or privilege thereon,  47 be it of ownership, authority or jurisdiction." 23722  Submission by Mr. Jackson  1  2 Now, my lord, at page 30, if your lordship could  3 turn back to the argument one page, page 30, my lord,  4 I say that these first agreements bear close analysis  5 in terms of what the pre-existing rights of the  6 aboriginal peoples were and the legal protocol for  7 acquisition of those rights.  More specifically, these  8 deeds recognize as pre-existing the Indian system of  9 land ownership, acknowledge the jurisdictional  10 authority of the Indian leaders and refer to the  11 protocol of acquiring the consent of the Indians in  12 full Council for transfer of rights of both ownership  13 and jurisdiction.  14 Now, back on page 31, my lord, the Dutch continued  15 their practice of purchasing land from Indians on Long  16 Island and began forging alliances of friendship and  17 ongoing trade relations with the Indian nations to the  18 north, including the Mohawks or Maquas, as the Dutch  19 called them, who as the most easterly of the Iroquois  20 Confederacy became the earliest partners in the  21 Dutch-Iroquois alliance.  22 And, my lord, on pages 31, 32, and 33, I describe  23 how in the short-lived colony of New Sweden the same  24 practice of purchasing Indian lands was carried out by  25 the Swedish.  26 I would turn now, my lord, to page 34, under the  27 general heading of the recognition of legal rights of  28 aboriginal peoples by British Colonial authorities  29 from the date of the Virginia authority, 1609 to 1753.  30 And I'm going to start, my lord, with colonial  31 practice in the colony of New York.  32 English settlement in North America was authorized  33 pursuant to various Royal Charters, letters, patents,  34 and grants made by the British Crown.  Typically,  35 these did not mention the existence of aboriginal  36 populations in the regions in question.  Many of these  37 grants were to private individuals and private trading  38 companies.  39 The legal effect of these Charters on pre-existing  40 rights of aboriginal peoples was early on the subject  41 of diplomatic exchanges in New England.  And the  42 incident which sparked this exchange was the detention  43 of a Dutch ship at Plymouth by the English in 1632 on  44 the grounds that the Dutch were trading in countries  45 claimed by England.  46 My lord, this in many ways mirrors a similar  47 incident which took place off the coast of British 23723  Submission by Mr. Jackson  1 Columbus at Nootka Sound in 1790 when the Spanish  2 turned the tables, so to speak, and seized British  3 ships on the basis that the British were trading in  4 countries rightfully belonging to the Spanish Crown.  5 In 1632, my lord, the Dutch, in demonstrating that  6 their ships were illegally detained, set out their  7 position on the rights of the aboriginal peoples in  8 this way, and I have a quote at the bottom of page 34  9 which goes over to page 35.  It's at page 35, four  10 lines down, my lord, that I think sums up the nub of  11 the Dutch position:  12  13 "But, that it is directly contrary to all right  14 and reason, for one potentate to prevent the  15 subjects of another to trade in countries  16 whereof his people have not taken, nor obtained  17 actual possession from the right owners, either  18 by contract or purchase."  19  20 The English answer to the remonstrance of the  21 Dutch ambassadors regarding the seizure of their  22 vessel sought to base British claims on their Royal  23 Charter and denied Dutch claims based upon purchase  24 from the Indians.  And the answer of the English was  25 that:  26  27 "It is denied that the Indians were possessores  28 bonae fidei of these countries, so as to be  29 able to dispose of them either by sale or  30 donation, their residences being unsettled and  31 uncertain, and only being in common; and in the  32 second place, it cannot be proved de facto,  33 that all the natives of said country had  34 contracted with them at the said pretended  35 sale.  36 ...but, moreover, the right His Majesty's  37 subjects have in that country, is justified by  38 first discovery, occupation, and the possession  39 which they have taken thereof and by the  40 concessions, letters and patents they have had  41 from our sovereign."  42  43 This answer, my lord, on page 36 I say has a dual  44 thrust.  In the first place, it asserts that the  45 Indians did not have sufficient legal possession to  46 give them any legal title capable of transfer to the  47 Dutch.  It has, however, been pointed out that the 23724  Submission by Mr. Jackson  1 premises of this argument are fatally flawed.  Thus,  2 my lord, the argument:  3  4 "...ignored the fact that the Indians of this  5 area lived in permanent, settled villages and  6 moved them only when the soil became exhausted  7 or other natural conditions were unfavourable  8 for an adequate livelihood.  In this sense,  9 they were no more wanderers than were the  10 English immigrants who came to the New World.  11 The Indian practice of leaving villages  12 temporarily during the hunting or fishing  13 season did not obviate the fact that these  14 Northeast Woodland Indians had settled  15 habitations and were well acquainted with the  16 boundaries of their tribal territories."  17  18 MR. GOLDIE: That's the editor, is it?  19 MR. JACKSON:  That is a comment made by the editors of the early  20 American Indian documents.  21 The second basis for the response appears, my  22 lord, to be that the Royal Charter conferred  23 proprietary rights in contrast to the Dutch West India  24 Company Charter which did not purport to grant any  25 proprietary interest.  26 It is of particular note, my lord, that in 1790  27 when, as I say, the tables were turned and the Spanish  28 seized the English ships, the English gave to the  29 Spanish exactly the same argument as the Dutch had  30 given to the English.  31 And my lord, my friend, my colleague Mr. Rush,  32 will be taking you to this document, it is Exhibit  33 1039, tab 8, and I'm not asking your lordship to have  34 that before you, but I will just read to you so your  35 lordship can get the gist of this, what the British  36 said to the Spanish, when their ships were seized in  37 1790.  And they said:  38  39 "The subjects of His Majesty have an  40 unquestionable right to a free and undisturbed  41 enjoyment of the benefits of commerce,  42 navigation and fishery, and also to the  43 possession of such establishments as they may  44 form with the consent of the natives in places  45 unoccupied by other European nations."  46  47 In other words, my lord, in 1790 the British 23725  Submission by Mr. Jackson  1 asserted rights derived from purchase from the natives  2 of the north-west coast.  3 In any event, my lord, the emptiness of the  4 diplomatic assertions by the English authorities in  5 1632 that the Indians were not the true owners of  6 their territory, for whatever reason, is made very  7 clear in the pattern of treaty making which was  8 initiated when the English started settlements on  9 eastern Long Island in the areas adjacent to those  10 settled by the Dutch.  And in 1636 William Alexander,  11 the Earl of Stirling and Secretary for the Kingdom of  12 Scotland, received a patent for Long Island and in the  13 following year designated James Farrett as deputy with  14 power of attorney.  In 1639 Lyon Gardiner, an English  15 settler, negotiated the first grant of land from the  16 Indians of eastern Long Island.  17 And these rights granted by the Indians to Lyon  18 Gardiner were confirmed in a parallel grant made by  19 James Farrett on behalf of the Earl of Stirling in  20 1640.  And in granting Gardiner the right to enjoy the  21 possession of Manchonack Island and to institute laws  22 for civil government, the grant recites the prior  23 Indian title and purchases by Gardiner in these terms:  24  25 "...which island hath been purchased, before my  26 coming, from the ancient inhabitants, the  27 Indians; nevertheless, the said Lyon Gardiner  28 had his possession first from the Indians  29 before my coming, yet is he now content to hold  30 the tenor and title of the possession of the  31 aforesaid island from the Earl of Stirling or  32 his successors..."  33  34 He goes on, my lord.  35 The effect of a grant of land under a Royal  36 Charter on the existing rights of the Indians is  37 reflected in the language of a patent granted by James  38 Farrett to a group of Englishmen to settle an area  39 eight miles square on Long Island.  And the patent,  40 after setting out the grant, states:  41  42 "...The aforesaid inhabitants shall make  43 purchase in their own names and at their own  44 leisure from any Indians that inhabit or have  45 lawful right to any of the aforementioned,  46 aforesaid land, and any part thereof, and  47 thereby assume it to themselves and their heirs 23726  Submission by Mr. Jackson  1 as their inheritance forever."  2  3 The language in these documents, we say, my lord,  4 is strong evidence in support of the legal conclusion  5 reached by Chief Justice Marshall in Worcester v.  6 Georgia, in a passage I already read to your lordship,  7 that the colonial charters regulated the rights of the  8 Crown vis-a-vis its subjects and did not affect the  9 pre-existing legal rights of the Indians.  Areas which  10 were uninhabited might be gained solely by occupation  11 and settlement. For lands held and occupied by  12 Indians, a conquest or cession from the Indians was a  13 prerequisite, a legal prerequisite, to bringing the  14 Charter provisions into full effect.  15 On page 39, my lord, in the middle paragraph,  16 following their grant from the Earl of Stirling --  17 THE COURT:  I'm sorry, Mr. Jackson, that whole paragraph on page  18 38, that's not a quotation from Chief Justice Marshall  19 is it?  2 0 MR. JACKSON:  No, my lord.  21 THE COURT:  That's argument?  22 MR. JACKSON:  That's argument, yes.  2 3 THE COURT:  Thank you.  24 MR. JACKSON:  The passage which I quoted, my lord, was back on  25 page 36.  It is a passage, as I've said, my lord, I  26 will be bringing your lordship back to.  27 THE COURT:  Yes.  Thank you.  Go ahead, please.  28 MR. JACKSON:  At page 39, following their grant from the Earl of  29 Stirling, the English settlers proceeded to enter into  30 agreements with the Indian land-owners.  These  31 agreements not only dealt with the acquisition of land  32 rights, but also encompassed obligations of mutual  33 assistance against other hostile Indian nations.  An  34 important example is an agreement of December the  35 13th, 1640 which, after reciting that certain Indians  36 are "the native inhabitants and true owners of the  37 eastern part of the Long Island" provides that as part  38 of the consideration for the cession of land "the  39 English shall defend us...the sayed Indians from the  40 unjust violence of whatever Indians shall illegally  41 assaile us".  42 And that, my lord, as the editors of the early  43 American Indian documents points out, refers to some  44 intertribal hostilities which were present in that  45 region.  46 We say, my lord, in relation to this and other  47 documents of this time, that this agreement should 23727  Submission by Mr. Jackson  1 properly be seen as one of the earliest examples of a  2 treaty in which the English assumed a protectorate  3 role without in any way limiting the Indians  4 jurisdiction or powers of self-government over  5 themselves and their lands.  6 At the bottom of page 40, my lord, the treaties  7 under which the Indians of eastern Long Island  8 transferred land to the New England colonies were  9 often coupled with a reservation of continuing rights  10 relating to important Indian harvesting activities,  11 particularly fishing, which was a vital part of the  12 Indian coastal economy.  Thus, we find in a 1648 deed  13 a reservation that the "sayed satchems", and satchems,  14 my lord, is a word for chiefs or leaders.  15  16 "The sayed satchems have covenanted to have  17 libertie freelye to fish in anie or all creekes  18 and ponds and hunt up and downe in the woods  19 without molestation."  20  21 And my lord, this language in these 17th century  22 treaties on the eastern seaboard of North America  23 bears some resemblance, indeed some strong  24 resemblance, to the reservation of the right to fish  25 and hunt contained in the Douglas treaties of British  26 Columbia negotiated on the Pacific north-west coast  27 some 200 years later.  And my lord, page 41, I refer  28 you to two decisions of our Court of Appeal in which  29 those particular provisions have been judicially  30 construed.  31 In March of 1664 King Charles the II issued a  32 grant to his brother James, Duke of York, to the  33 colony of New Netherlands, while that colony was still  34 in the possession of the Dutch.  At the same time, he  35 issued a series of instructions to Colonel Richard  36 Nicolls, who was charged with carrying out the  37 conquest of that colony.  These instructions, my lord,  38 provide significant evidence of the English Crown's  39 position regarding the legal status and the  40 pre-existing property rights of the Indian nations.  41 And I've set them out, and I want to take your  42 lordship through them:  43  44 "You shall use all possible endeavours, first by  45 private inquiry..."  46  47 And remember, my lord, this is from the king. 2372?  Submission by Mr. Jackson  1  2 "...and then by publick examination, to informe  3 yourselves of what was heretofore done about  4 the year 1664 from the Chiefe sachim and other  5 the princes of a large tract of ground about  6 the Narragansett Bay who, as we are informed  7 did about that tyme by a formall instrument  8 under their lands and seales, transferre that  9 their countrey to our Royal Father for his  10 protection, and became his subjects; which  11 authentick instrument remains still in the  12 hands of Samuell Gorton, John Wicks and Randall  13 Houlden, who inhabite at or neare Warwicke Road  14 Island. If upon examination you find this  15 information wee have received to bee true and  16 that we have indeed a good title to that  17 territory; you shall find some way to lett  18 those sachems or their heires, know that wee  19 have given you special direction to examine  20 injuries done to them by our subjects, and that  21 you are ready to receive any informacon that  22 they shall give you to that purpose, thereupon  23 to doe them justice, and that wee will always  24 protect them from any oppression; and if you  25 have cleare proofe that in truth that these  26 territorys are transferred to us, you shall  27 seize upon the same in our names, and the same  28 tract of land shall bee hereafter called the  29 King's province."  30  31 Now, my lord, we say that in these instructions  32 King Charles the II expressly stated that the only  33 possible source of good titles of property and  34 sovereignty for the Crown in the lands referred to was  35 cession from the Indians.  Transfer by a formal  36 instrument is clearly contemplated as the means by  37 which the Crown acquired both sovereignty over the  38 native inhabitants and rights of property in their  39 land.  Grants of the lands are authorized only if the  40 Crown has acquired title to them by such cession.  We  41 say these instructions again confirm that grants of  42 land to English settlers by the Crown have full legal  43 effect in terms of granting rights of possession only  44 upon the purchase of such lands from the Indians.  45 Now, my lord, at page 43 to 45 we review a number  46 of documents recorded in the New York record books  47 which illustrate the continuity, after the English 23729  Submission by Mr. Jackson  1 acquisition of this territory from the Dutch, of the  2 recognition of Indian ownership and that such  3 ownership is the source of title to lands originally  4 in the possession of the Indians.  5 And at page 43, my lord, and I think I won't go  6 through it with your lordship, I refer to a deed of  7 May the 4th, 1665, which is Exhibit 1244, tab 21.  8 THE COURT:  I'm sorry, what page, please?  9 MR. JACKSON:  Page 43.  10 THE COURT:  Yes.  11 MR. JACKSON:  It's a deed of May the 4th, 1665 from the Indian  12 Chief Nesatesconsett to Richard Smith, and it recites  13 at some length that Richard Smith had bought land from  14 Lyon Gardiner in 1663, but the chief filed a complaint  15 in court with the commissioners at Hartford in 1664  16 that he still owned part of this land.  The chief  17 stated that he had sold part of the land to another  18 Chief, Wyandanch, to be given to Lyon Gardiner, but  19 that he had retained the part in dispute.  The court  20 advised Smith to buy this disputed land of Chief  21 Nesatesconsett in case he had not sold it.  Richard  22 Smith then went to speak with Wyandanch's daughter who  23 said that Nesatesconsett had given one part of the  24 property to her father and the other part to her  25 brother.  Richard Smith, finding no deed to prove  26 this, and in light of the fact that Wyandanch's  27 daughter acknowledged that he was the original  28 proprietor, agreed to buy land from Nesatesconsett in  29 order to perfect his title.  The document goes on to  30 certify that Nesatesconsett agrees to and has sold all  31 of his land and he's joined in the sale by another  32 Indian who lays claim to half the disputed land and  33 together they agree to maintain the right of Richard  34 Smith and his heirs in the land reserving, however,  35 "the liberty of Matts Canoos and Eagles and Deare  36 Skins catcht in the water".  37 Now, my lord, when I read that document and tried  38 to thread my way through the recitals, it reminded me  39 when I was articling in England in the English  40 solicitors' conveyancing department of trying to  41 thread the eye of a 19th century conveyance, trying to  42 track back to a route of title.  43 And we say, my lord, that documents such as this,  44 which seek to trace the root of title to an Indian  45 grant are quite and wholly inconsistent with the  46 sometimes asserted judicial view that the practice of  47 purchasing lands from the Indians in colonial times 23730  Submission by Mr. Jackson  1 was one of benevolence and prudence.  2 And I say that, my lord, at page 44, and at page  3 44 I give your lordship some citations to which I will  4 return in which that judicial view, that these deeds  5 are the exercise of the king's grace or goodwill, and  6 do not bespeak any legal recognition, statements by  7 Chancellor Boyd in St. Catherine's Milling, and most  8 recently Mr. Justice Steele in Bear Island, are part  9 of that stream of jurisprudence which we say, my lord,  10 is denied and gainsaid by the historical record.  11 And we say, my lord, that the detailed  12 documentation of the chain of title in these early  13 deeds demonstrates the extent to which these Indian  14 cessions of land were seen as being infused with  15 legality, and that the Indians were the owners of  16 lands with legal interests to convey.  17 Page 45, my lord, and I won't go into this, there  18 is a reference to a very famous historical deed, the  19 deed to Staten Island, New York, which was so  20 complicated that there were a series of deeds drawn  21 initially in favour of the Dutch and finally in favour  22 of the colony of New York in 1670.  23 One matter, my lord, which we will come back to  24 later, but I wanted to alert your lordship to it, some  25 of these documents, and there's a reference to one of  26 them on page 45, in reciting that the original Indian  27 owners are lawfully seized of the land, recite that  28 the Indian owner sells the land in fee.  And you will  29 see a reference to that deed on page 45.  This  30 characterization of the nature of the Indian interest  31 in land as being seisin for an estate in fee, is one,  32 my lord, which has found support in some judicial  33 statements.  And I'll be referring particularly to the  34 statement of Mr. Justice Johnson in the case of  35 Fletcher v. Peck.  36 But more recently, my lord, Professor Kent McNeil,  37 in a thesis originally written as a doctor of  38 philosophy thesis at Oxford University, has submitted  39 that applying principles of common law real property,  40 which would be part of the general laws which would  41 flow into a settled colony, the Indian interest in  42 lands, as a matter of common law property, is a fee  43 simple.  And I have reduced Professor McNeil's lengthy  44 thesis to its bare bones, my lord, in a passage at  45 page 46.  46 THE COURT:  But can that be squared with the St. Catherine's  47 Milling case? 23731  Submission by Mr. Jackson  1 MR. JACKSON:  It cannot be squared with the St. Catherine's  2 Milling case, my lord, and I'm not taking a position  3 on that.  I'm alerting your lordship to a position  4 which Professor McNeil has stated.  His argument is  5 that St. Catherine's Milling misconceived the nature  6 of aboriginal title.  It is in fact, my lord, a  7 position which the plaintiffs also argue for different  8 reasons that St. Catherine's Milling has to be looked  9 at with careful scrutiny, and we will in fact be  10 giving it that scrutiny.  11 But Professor McNeil's position is that where  12 indigenous people were in occupation of lands at the  13 time of the assertion of Crown sovereignty, they would  14 be presumed to have possession and therefore to be  15 seized for estates in fee simple and they were  16 presumed to have title, and this presumptive title is  17 what he refers to as common law or aboriginal title.  18 My only point, my lord, is that some of these early  19 documents lend support to Professor McNeil's  20 characterization.  21 THE COURT:  It must be very easy to be a professor.  22 MR. JACKSON:  I'm not sure it is, my lord.  23 THE COURT:  Such a wide-running writ as that, but, anyway.  24 MR. JACKSON:  As I say, my lord, we do not necessarily subscribe  25 to Professor McNeil's characterization.  26 MR. GOLDIE: Well, my lord, if I may comment for a minute, having  27 regard to your lordship's question, Professor McNeil  28 seems to be referring to a settled colony which is a  29 different proposition than a ceded or a conquered  30 colony which St. Catherine's Milling was talking  31 about.  32 THE COURT:  All right.  33 MR. JACKSON:  The question of ceded and settled colonies, my  34 lord, is a point of -- one of the many points of  35 differences between my friends and us, and Mr. Rush  36 will in due course be addressing himself to that  37 point.  38 At this point, my lord, and I don't know what your  39 lordship's wish is in terms of the morning break --  40 THE COURT: I thought we'd go to eleven o'clock, if that's  41 convenient.  42 MR. JACKSON:  That's convenient to me, my lord.  And I want to,  43 and I think I can deal with this before the morning  44 break, turn to colonial experience in Massachusetts  45 because, my lord, by contrast to the early colonial  46 practice in New York the Puritan settlers who founded  47 Massachusetts pursuant to the Royal Charter of 1629 23732  Submission by Mr. Jackson  1 adopted a policy reflected in an early Massachusetts  2 law of 1634 that only recognized Indian rights to  3 lands that they possessed and improved.  And despite  4 the 1629 instruction of the New England Company to  5 John Endicott to purchase the Indian title "if any of  6 the savages pretend a right of inheritance to all or  7 any part of the lands granted in our patent",  8 Massachusetts' first colonial governor, John Winthrop,  9 who replaced Endicott in 1630, held views about Indian  10 property rights that were inconsistent with the  11 Company's instructions.  12 My lord, John Winthrop is the governor who, your  13 lordship may recall, whose funeral was recorded in  14 Hawthorne's "The Scarlet Letter".  15 Winthrop cited the authority of the scriptures for  16 support for his proposition that the Indians had no  17 rights to lands which were not under actual  18 cultivation.  And Winthrop's position is summed up in  19 the citation I include at page 47:  20  21 "The whole earth is the Lord's Garden and he  22 hath given it to the sons of men, with a  23 general condition.  Increase and multiply,  24 replenish the earth and subdue it...and for the  25 natives of New England they inclose no land  26 neither have any settled habitation nor any  27 tame cattle to improve the land by, and soe  28 have noe other but a natural right to those  29 countries soe as if we leave them sufficient  30 for their use we may lawfully take the rest,  31 their being more than enough for them and us."  32  33 My lord, this view, if strictly applied, would  34 have had the effect of depriving the Indians of their  35 hunting territories.  In actual fact, this view that  36 uncultivated land was vacuum domicilium and thus open  37 for settlement without purchase from the Indians was  38 never put to the test because the Puritans established  39 their early settlements on land which had been left  40 completely vacant by virtue of a major epidemic which  41 had swept through the area in 1616.  42 And as the Puritans became more familiar with  43 their Indian neighbours they came to recognize that  44 the Indians were indeed making use of the resources of  45 the entire country within the contours of their own  46 distinctive economy.  Narrow English concepts like  47 "land possessed and improved by subduing" had to be 23733  Submission by Mr. Jackson  1 interpreted more liberally when applied to Indian  2 land.  "Improved" came to mean "utilized" not just  3 under cultivation.  And as Professor Kawashima points  4 out, my lord, as a primary reference to this period  5 which is included in our book of materials of the  6 treatises, Exhibit 1249, tab 6.  Professor Kawashima  7 points out, to deny Indians title to uncultivated land  8 contradicted venerable English practices, legal  9 practices, that recognized title to land held in  10 similar conditions.  For example, undivided,  11 unimproved common land; the vast forests held by the  12 English aristocracy; and the undivided land of the New  13 England townships.  Thus, the Puritans came to  14 recognize as "improved lands" the fields of roots and  15 berries, flats full of clams and hunting grounds for  16 beavers.  17 On page 49, my lord, by 1647 the Puritan position  18 on the acquisition of territory in possession of  19 aboriginal peoples was well expressed by John Cotton:  20  21 "That it was neither the King's intendement, nor  22 the English Planters to take possession of the  23 Country by Murther of the natives, or by  24 robbery:  but either to take possession of the  25 voyd places of the Country by the law of nature  26 or if we took any lands from the natives, it  27 was by way of purchase and free consent."  28  29 The legal conclusion that Indians had title to all  30 territories utilized by them, regardless of European  31 concepts of cultivation, was affirmed by special Royal  32 Commissioners who were named in 1664 to visit the New  33 England colonies and who were directed specifically to  34 peruse colonial laws for any points "which are  35 contrary to our dignity and the lawes and customes of  36 this realme and to the justice thereof".  37 And, my lord, page 50, the commissioners referred  38 specifically to this 1634 Massachusetts law which  39 would limit Indian rights to lands that they possess  40 and improved.  And the commissioners rejected the  41 proposition that Indians had no title to unimproved or  42 uncultivated land.  The commissioners took exception  43 to this act, commenting that its provisions implied  44 that the Indians "were dispossessed of their land by  45 Scripture, which is both against the honour of God and  46 the justice of the king".  The commissioners'  47 conclusions was that "no doubt the country is theirs, 23734  Submission by Mr. Jackson  1 the Indians, 'til they give it or sell it, though it  2 be not improoved".  3 My lord, my colleague Mr. Rush will be referring  4 you to a document in which almost 200 years later, and  5 again on the other side of the continent, in 1849,  6 when the secretary of the Hudson's Bay Company, Mr.  7 Barclay, sent instructions to James Douglas, chief  8 factor of the Hudson's Bay Company of Vancouver Island  9 in the following terms, and they're cited at the  10 bottom of page 50:  11  12 "With respect to the rights of the natives you  13 will have to confer with the chiefs of the  14 tribes on that subject and in your negotiations  15 with them you are to consider the natives as  16 the rightful possessors of such lands only as  17 they occupied by cultivation or had houses  18 built on..."  19  2 0 And, my lord, I haven't given you an exhibit  21 number.  My friend, as I say, will be revisiting this  22 document with some particularity later on in our  2 3 argument.  24 MR. GOLDIE: I think it's Exhibit 1039, tab 22, but we'll check  25 that, my lord.  It's in several places.  26 THE COURT:  1039-22.  Thank you.  27 MR. JACKSON:  Thank you, Mr. Goldie.  I'm advised that that  28 corresponds with our records as well, my lord.  29 Although Secretary Barclay did not pray in aid the  30 scriptual authorities of Governor Winthrop, we say, my  31 lord, that his purported limitation on the rights of  32 the natives of Vancouver Island is a misconception of  33 the obligations of the Crown with respect to dealing  34 with the native title to which obligations the  35 company's, that is the Hudson's Bay Company land grant  36 was made subject.  Such a purported limitation of  37 Indians rights to only cultivated lands was, we say,  38 in 1849 in British Columbia, no less than in 1664 in  39 Massachusetts, against "the justice of the king" and,  40 furthermore, contrary to the fundamental principles of  41 the common law.  42 My lord, in 1686 when the new Royal Governor of  43 the Dominion of New England challenged the validity of  44 existing Essex Town claims to common land within their  45 border, for want of a proper root of title through  46 Indian purchases, Essex land-owners made a belated  47 effort to validate their title with an Indian quit 23735  Submission by Mr. Jackson  1 claim.  And it stipulates in relevant part, page 52:  2  3 "Until the ensealing and delivery of these  4 presents, they the Indians and their ancestors  5 were the true, sole and lawfull owners of the  6 afore bargained premises and were lawful seized  7 of and in the same, and every part thereof in  8 their own proper right."  9  10 And I've given you on page 52, my lord, a  11 summation by Professor Kawashima of the first century  12 of colonization in Massachusetts where he says:  13  14 "Contrary to the common belief that the Indians  15 were ruthlessly deprived of their land, almost  16 every part of the colony that came to be  17 inhabited by the whites was purchased from the  18 Indians, except the areas that were either  19 acquired by conquest or, like Salem and Boston,  20 never claimed by the Indians, because of  21 de-population by epidemics."  22  23 The legal proposition that notwithstanding the  24 Royal Charters and grants, a good title to lands in  25 the British colonies in possession of the Indians was  26 conditioned upon its lawful acquisition by purchase  27 and consent from the Indians is further confirmed by  28 the terms of instruments issued by Charles the II  29 after the Restoration to regularize the position of  30 the colonies of Connecticut and Rhode Island, neither  31 of which held Royal Charters.  32 And on page 53, my lord, I have set out the  33 recital of the Rhode Island Charter of 1663, which  34 states that the petitioners, upon arriving in America,  35 settled amidst certain Indians "who, as we are  36 informed, are the most potent princes and people of  37 all that country."  38 And it goes on to assert that the petitioners are  39 now "seized and possessed, by purchase and consent of  40 the said natives, to their full content, of such  41 lands, islands, rivers harbours and roads..."  42 My lord, that would be a convenient.  43 THE COURT:  All right.  Thank you.  44 THE REGISTRAR: Order in court.  Court stands adjourned for a  45 short recess.  46  47 23736  Submission by Mr. Jackson  1  2 (PROCEEDINGS ADJOURNED AT 11:00)  3  4 I hereby certify the foregoing to be  5 a true and accurate transcript of the  6 proceedings herein transcribed to the  7 best of my skill and ability.  8  9    10 Tanita S. French  11 Official Reporter  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 23737  Submisstions by Mr. Jackson  1 (PROCEEDINGS RESUMED FOLLOWING SHORT RECESS)  2  3 THE COURT:  Mr. Jackson.  4 MR. JACKSON:  Page 53, my lord.  Under the heading of Colonial  5 Practice in Virginia, the issue of aboriginal  6 jurisdiction.  7 Thusfar, my lord, our submissions are have focussed  8 principally on the recognition by the colonial  9 authorities of pre-existing aboriginal rights of  10 ownership.  The early historical records in the  11 British North American colonies also provides  12 important legal insights as to the nature of the  13 relationship between the colonial authorities and  14 Indian nations in terms of the recognition of  15 aboriginal jurisdiction.  And it is our submission  16 that it is possible to identify three types of  17 political and legal relationships:  First, there were  18 those Indian nations who are recognized as independent  19 and equal and who negotiated treaties as sovereign  20 political entities.  Examples of such Indians are the  21 Powhatan Confederacy in the 17th Century, the Iroquois  22 and Cherokee Nations in the 17th and 18th Centuries.  23 These were referred to as "foreign Indians". The  24 second group came to be referred to as "tributary  25 Indians".  These were Indians who by treaty  26 acknowledged that in some significant ways, they came  27 under the jurisdiction of the English and in some  28 cases this took the form of an acknowledgement that  29 their political leaders owed their authority to the  30 British Crown and that they were to be appointed or  31 confirmed by the King's representatives.  In other  32 cases, annual tributes of furs or skins were to be  33 made by these nations in return for English  34 protection.  This kind of tributary relationship was  35 developed early on the Eastern Seaboard, in what is  36 now New York and had its most detailed working through  37 in Virginia in the 17th and 18th centuries.  38 It is important to realize that the relationship  39 between a particular Indian nation and the colonial  40 authorities could change over time.  And thus the  41 Powhatan Confederacy, in the course of the 17th  42 century, moved from the a position of negotiating with  43 Virginia as independent political communities to a  44 tributary status, prescribed by treaty arrangements.  45 All "tributary" relationsships were not therefore  the  46 same kind.  The third category was quite different  47 from the other two and involved individual Indians 2373?  Submisstions by Mr. Jackson  1 abandoned tribal ties and entered colonial societies  2 as servants, slaves or free persons and who came under  3 English jurisdiction and law for all purposes.  4 There are two matters of legal significance in  5 analyzing the early historical record regarding the  6 nature of the relationship between Indian nations and  7 colonial authorities.  First, in almost all cases,  8 except where terms were dictated following hostilities  9 and conquest, the nature of the political and legal  10 relationship between a particular Indian relationship  11 and the colonial authority was the subject of  12 negotiated settlement.  The clear pattern which  13 emerges from the historical material is that  14 negotiated settlement of political relationships was  15 deemed as necessary as a negotiated settlement of the  16 territorial boundaries and in many cases both sets of  17 relationships were the subject of the same treaty  18 settlement.  19 A second point of legal significance is that there  20 was a broad spectrum of relationships, thus in any  21 particular case the relationship established was, to  22 use the language of Chief Justice Dickson again in  23 Guerin, sui generis.  Although the modern Canadian  24 case law is reflected in Guerin now recognizes that  25 the aboriginal interest in land is sui generis, there  26 has not been thusfar in the case law the same  27 recognition that the jurisdictional interest governing  28 the people has this same character.  And it is our  29 submission that the whole spectrum of arrangements  30 encompassed in the early historical record, is  31 precedent for this legal concept.  32 My lord, we will be making submissions later in  33 the day, not this day, that the jurisdiction of the  34 plaintiffs is sui generis, and based upon the evidence  35 you have heard and the manner in which it will be  36 characterized by us, leads your lordship in fact to  37 issue declarations that that sui generis  38 jurisdictional component is part and parcel of their  39 aboriginal rights.  My point here is that the early  40 historical record provides important historical  41 precedence for this concept.  42 The spectrum of Indian-Crown relationships in the  43 17th and 18th centuries is well illustrated in  44 Virginia.  The first English settlers who arrived in  45 Virginia in 1606, pursuant to the first Virginia  46 Charter, encountered the Powhatan Indians.  My lord,  47 there is a contemporary account of the social and 23739  Submisstions by Mr. Jackson  1 political organization of the Powhatan Indians which I  2 want to recite to your lordship for a purpose which  3 will become clear in a moment.  This was by Captain  4 John Smith who became the first governor of Virginia,  5 in talking about the Powhatans he said:  6  7 "Although the countrie people be very barbarous;  8 yet have they amongst them such government, as  9 that their magistrates for good commanding, and  10 their people for due subjection and obeying,  11 excel many places that would be counted very  12 civil.  The forme of their common wealth in a  13 monarchicall government.  One as emperour  14 ruleth over many kings or goverours."  15  16 And then on page 57, half way down that paragraph:  17  18  19 "His Kingdome descendeth not to his sonnes  20 norchildren: but first to his brethren whereof  21 he hath three...and after their decease, to his  22 sisters.  First to the eldest sister, then to  23 the rest:and after them to the heires male and  24 female of the eldest sister; but never to the  25 heires of the males...they all knowe their  26 severall landes, and habitations, and limits to  27 fish, fowle, or hunt in; but they hold all of  28 their great King Powhatan, unto whome they pay  29 tribute of skines, beades, copper, pearle,  30 deere, turkies, wild beasts and corne."  31  32  33 Now, my lord, the provincial defendant in the  34 summary of argument delivered to us, has characterized  35 the laws of the plaintiffs, particularly the system of  36 decision-making which focuses decision-making in the  37 hands of the hereditary chiefs, they have  38 characterized those laws, and I am quoting, "As odious  39 as the conduct of King John which led to the Magna  40 Carta."  Had my friends directed their comments to  41 King Powhatan, they may have had some relevance.  42 My lord, those statements are, to use Mr. Goldie's  43 words, extravagant and deeply offensive to the  44 plaintiffs, and we will in fact be coming back to  45 them.  46 My lord, the early negotiations --  47 MR. GOLDIE:  My lord, perhaps my friend will stay away from 23740  Submisstions by Mr. Jackson  1 comparing the people of British Columbia with Spanish  2 customs.  3 MR. JACKSON:  My lord, again on page 57, the early negotiations  4 between the Virginia colonists and the Powhatan were  5 friendly, based on mutual accomodation, but that  6 changed rather quickly.  And at page 57 to 59, I  7 summarize the nature of that change was brought about  8 specifically because of a rapidly developing demand  9 for cultivating land for tobacco growing and the  10 concomitant rise in English population.  In any event,  11 there were attacks by the Powhatan upon the English  12 colonists, in 1622 and again in 1644 and general  13 hostilities proceeded, resulted in the defeat of the  14 Powhatans by the British colonists.  As a result of  15 those hostilities, they were determined or terminated,  16 by a treaty of peace in 1646 to which reference is  17 made the bottom of page 59.  And under that treaty,  18 the successor to Powhatan, Necotowance:  19  2 0 "do acknowledge to holde his kingdome from the  21 King's Majestie of England, and that his  22 successors be appointed or confirmed by the  23 King's Governours from time to time, and on the  24 other side this Assembly on the behalfe of the  25 collony, doth, undertake to protect him or them  26 against any rebells or other enemies  27 whatsoever, and as an acknowledgement and  28 tribute for such protection, the said  29 Nocotowance and his successors are to paye unto  30 the King's Governour the number of 20 beaver  31 skins att the goeing way of Geese yearely."  32  33  34 Now, page 60, my lord, Professor Slattery in his  35 work The Land Rights of Indigenous Peoples, has  36 maintained that the treaty of 1646 sheds light on the  37 status which the Indians were conceived to hold  38 vis-a-vis the Crown and that, as he says, "we see here  39 a distinct acknowledgement that the Indians in  40 question occupied an autonomous status under their own  41 ruler and within their own territories subordinate to  42 the overall sovereignty of the English Crown."  43 We say, my lord, at the bottom of page 60, that  44 there are several points to be made about this  45 characterization.  The most important is that the  46 submission by the Powhatans to the authority of the  47 Crown followed a state of war and what, in effect, was 23741  Submisstions by Mr. Jackson  1 the conquest of the Indians.  And the treaty to that  2 extent, my lord, is properly to be viewed as the  3 equivalent of articles of capitulation.  As such, it  4 describes one form of the tributary status arising  5 after a state of war, but it dulls not definitively  6 describe the nature of the relationship between the  7 colonial authorities and Indian nations who are not  8 conquered.  It is part, my lord, in other words, of  9 the spectrum of which I talked of a moment ago.  10 Hostilities erupted again and the relationship  11 between the Powhatans and the Virginia colonial  12 authorities was again the subject of a treaty in 1664.  13 And that treaty -- sorry, 1677.  And that treaty, my  14 lord, I would refer you to.  It's Exhibit 1244, tab  15 29.  16 Before I turn to the document itself, my lord, at  17 page 61, I note that the Treaty of Middle Plantation  18 is one also dealt with by Professor Slattery and as he  19 points out at the time the treaty was concluded by  20 virtue of royal instructions sent to the Governor and  21 Lieutenant Governor of Virginia and directed them to  22 make peace with the neighbouring Indians and in  23 managing the treaty with them to make use of special  24 Royal Commissioners as sent from England to the  25 colony.  When the commissioners returned to England,  26 the treaty was referred to the Lords of Trade for  27 their opinion, which reported that the treaty indeed  28 appeared to be for the service of His Majesty and the  29 security of his subjects.  And Professor Slattery  30 concludes that the Treaty of Middle Plantation,  31 accordingly, "constitutes a peculiarly authoritative  32 expression of the Crown's views as to the status of  33 Indian peoples and their lands within American  34 territories over which it claimed sovereignty."  35 Subject again, my lord, to the important  36 reservation of the Treaty of Middle Plantation  37 followed a period of hostilities between the settlers  38 and the Indians and represents an example of tributary  39 status, it nevertheless bears some detailed analysis.  40 A preamble recites that the treaty is for the "sure  41 establishment of a good and just peace with the said  42 Indians, founded upon the strong pillars of reciprocal  43 justice by confirming to them their just rights and by  44 redress of their wrongs and injuries."  45 Now, my lord, I would refer you now to the body of  46 the text and in particular to Articles 1 and Articles  47 12.  Under Article 1, it provides that "the respective 23742  Submisstions by Mr. Jackson  1 Indian Kings and Queens..."  page 82, " from  2 henceforth acknowledge to have their immediate  3 dependancy upon and own all subjection to the great  4 King of England, our now direct sovereign, his heirs  5 and successors, whom they pay their tribute to his  6 Majesty's Governor for the time being."  7 And if you then go to Article 12, page 85 of the  8 document, you will see it is provided that "each  9 Indian King and Queen have equal power to govern their  10 own people and none to have greater power than the  11 other except the Queen of Pamunkey, to whom several  12 scattered nations do now again own their ancient  13 subjection now agree to come in and plant themselves  14 under her power and government."  15 My lord, the significance of the juxtipostion of  16 Article 1 and Article 12, is that they show that  17 although the Powhatans acknowledged dependency and  18 subjection to the Crown, this lives alongside a  19 recognition of their continuing rights to self  20 government.  That is a point, my lord, to which we  21 will return later in the argument.  22 At page 64, my lord, the middle paragraph, although  23 the Treaty of Middle Plantation defined a boundary  24 between the English and Indian territory in the years  25 following the treaty, individual settlers approached  26 the Indian and purported to purchase or lease Indian  27 lands.  Many of these transactions were characterized  28 as sharp trading and the Virginia authorities,  29 paralleling the initiatives of the other colonies,  30 took strict measures to discourage this, less to lead  31 to the renewal of the hostilities which had occurred  32 earlier.  For example, in 1690 the Virginia Council  33 issued an order in which it stipulated that such  34 purchases were void and English settlers who bought  35 such lands must remove themselves, their stock and  36 buildings.  This order is similar to the provisions  37 introduced in most of the other colonies prohibiting  38 the private purchase of Indian lands without a  39 licence.  40 Over to page 65, my lord, the last sentence of the  41 first paragraph, we point out that in this important  42 regard, the terms of the Virginia Order, and its  43 underlying policy, resemble very much the Royal  44 Proclamation of 1763, which had provisions also  45 ordering removal from settlements established in  46 territory reserved to the Indians.  47 At page 66, 67 and 68, the written argument 23743  Submisstions by Mr. Jackson  1 describes some particular examples of treaty-making in  2 Virginia in the late 18th century conducted by the  3 governor of Virginia, Alexander Spotswood, and I would  4 draw your attention particularly on page 67, my lord,  5 to some of the terms of those treaties which, in  6 relation to certain of the provisions, particularly in  7 terms of the establishment amongst the Indians of a  8 minister and school master and the recognition of the  9 right and liberty of hunting on all unpatented lands,  10 those provisions presage provisions which are  11 contained in the numbered treaties made in Western  12 Canada, 150 years later, to which I will be returning  13 later this week.  14 I wish to turn now, my lord, to the next section,  15 which addresses colonial practice in Pennsylvania.  16 And we say that the extent to which the acquisition of  17 Indian rights to the soil was conditioned upon Indian  18 consent, is amply demonstrated by an examination of  19 the westwward expansion of settlement in Pennsylvania.  20 William Penn was granted Pennsylvania by King Charles  21 II in March 1681, as true and absolute propritory.  By  22 the terms of his charter, William Penn has been  23 described at holding the province as a feudal fief.  24 Although his charter made no mention of any pre-  25 existing rights of the Indians, like many of the other  26 original charters, he strictly observed the principle  27 of negotiated acquisition of Indian land.  And William  28 Penn's Indian policies bear particular examination in  29 the historical purposes of the analysis of aboriginal  30 rights, because unlike many other agents of  31 colonization, he was a man of high moral principle.  32 If, therefore, my lord, our inquiry is to determine  33 the manner in which the honour of the Crown is to be  34 exercised, William Penn's policies bear more than a  35 passing glance.  36 As a Quaker, he espoused principles of equality and  37 justice which informed his views regarding the rights  38 of the original peoples.  On his arrival in  39 Pennsylvania, he joined in Indian activities, gave and  40 accepted hospitality and studied Indian customs with  41 such perception that his descriptions are respected by  42 modern anthropologists.  I haven't spoken to my  43 anthropological colleague, my lord, but it may well be  44 that the William Penn is the father of participant  45 observation.  46 In 1681, after he had received the grant of his  47 colony, he wrote a letter for his agents to read to 23744  Submisstions by Mr. Jackson  1 the Indians in anticipation of his coming.  This  2 letter, my lord, is known to history as Penn's First  3 Letter to the Indians.  The letter, addressed to the  4 Kings of the Indians in Pennsylvania, reads in part:  5  6 "My friends - there is one great God and power  7 that hath made the world and all things therein  8 to whom you and I and all people owe their  9 being and well-being and to whom you and I must  10 one day give an account for all that we do in  11 the world.  This great God hath written his  12 laws in our hearts by which we are taught and  13 commanded to love and help and to to good to  14 one another and not do harm and mischief one to  15 the other. Now this great God hath been pleased  16 to make me concerned in your parts of the  17 world, and the king of the country where I live  18 hath given unto me a great province, but I  19 desire to enjoy it with your love and consent,  20 that we may always live together as neighbours  21 and friends."  22  23 William Penn did not interpret his Royal charter  24 as giving him right to the soil in derogation of the  25 rights of the Indian nations occupying Pennsylvania.  26 The Indians, he wrote:  27  28  29 "are as exact preservers of property as we  30 are...and that the Indians are true lords of  31 the soil."  32  33  34 Sometime after Penn's arrival in Pennsylvania in  35 October, 1682, he held the Great Treaty at Shackamaxon  36 to establish what the Quaker historian, Robert Proud,  37 has described as "a lasting friendship, a firm peace"  38 in which William Penn and the Indians mutually  39 promised to live together as brothers without doing  40 the least injury to each other."  No contempory record  41 of this famous treaty has survived, but tradition and  42 indirect evidence are strong.  In the middle of the  43 18th century, my lord, Voltaire wrote of it as "the  44 only treaty between those nations and Christians which  45 was never sworn to and never broken."  4 6 Even at the time of the American revolution, memory  47 of the treaty was so strong that it saved the great 23745  Submisstions by Mr. Jackson  1 elm tree under which it was held from being cut down  2 for firewood by soldiers during the British occupation  3 of Philadelphia.  It is believed by historians that it  4 was at this treaty that Penn was given the Delaware  5 name of "Miquon", meaning feather or pen, which was  6 later rendered as "Onas", its Iroquoes equivalent.  7 In 1682 to 1683, William Penn, through his agents,  8 purchased in a series of deeds lands belonging to the  9 Delaware Indians comprising what is present day  10 Philadelphia and its suburbs.  And in Exhibit 1224,  11 tabs 40 to 46, there are a series of deeds, my lord,  12 which cover that area.  13 As Pennsylvania's population increased, William  14 Penn, and later his sons, extended their land  15 acquisition policies westward.  Deeds of cession with  16 the Indians encompassed increasingly large areas  17 paralleling in many ways the pattern of treaty making  18 in Canada in the 19th century, in what is now Ontario,  19 Manitoba, Saskatchewan and Alberta.  A review of  20 Pennsylvania's negotiations with the Delawares, and  21 later, the Six Nations,  demonstrates the extent to  22 which colonial authorities in the 18th century, as in  23 the 17th century, deemed it essential as a matter of  24 law to be able to trace their title to an Indian  25 purchase.  The history of lands on the Susquehanna in  26 particular, illustrates that Indian land rights were  27 taken seriously in the 18th century.  28 And, my lord, there should have been after tab 54,  29 a map of Penn's Indian purchases, which in reviewing  30 my documents the other day I discovered was not there.  31 And I am handing one to my lord.  I have no further  32 comment to make on the map beyond the fact that it  33 describes in a figurative way the point I am making  34 about Indian purchase as lands were required for  35 westward expansion.  36 At page 72 and 73, I refer to an illustration of  37 the way in which, in Pennsylvania, the proprietory  38 William enn and his sons, deemed it necessary to trace  39 their root of title to Indian land purchases.  I don't  40 intend to go into that, my lord, but I just commend it  41 to you.  42 I wish now to turn, my lord, to page 74, to the  43 next section of the argument, under the heading Treaty  44 Making Between The Six Nations of the Iroquois  45 Conferacy and the Colonial Authorities:  The Covenant  46 Chain.  47 You will recall, my lord, in the evidence of Mr. 23746  Submisstions by Mr. Jackson  1 James Morrison, a significant part of that evidence  2 was devoted to placing before your lordship certain  3 documents relating to the covenant chain.  4 That in the 17th and 18th centuries, the formal  5 protocol of treaty making constituted the legal  6 paradigm for the accommodation of Indian-Crown  7 relationships and the acquisition of land required for  8 colonial settlement can be seen most clearly through  9 an analysis of the relationship between both the  10 French and English colonial authorities and the Six  11 Nations of the Iroquois Confederacy.  The Iroquois  12 Confederacy, as the major military power strategically  13 situated between rival English and French colonies,  14 played an important, indeed critical, role in shaping  15 the colonial history of North America.  Relations with  16 the Iroquois were of first importance to the security  17 and prosperity of New France and initially of the  18 colony of New York and subsequently other American  19 colonies and therefore constituted an object of  20 particular attention for the colonial governments.  21 Negotiations and agreements between the Iroquois and  22 the English and French respecting war and peace,  23 military alliances, neutrality, trade and land rights  24 were carefully recorded.  The records so compiled  25 provide, in large measure, the basis upon which  26 England and France subsequently formulated not only  27 their general Indian policies but also their competing  28 claims to territorial sovereignty in North America.  29 A review of that record reveals that despite competing  30 assertions of sovereignty over the Iroquois against  31 each other, both the English and French acknowledged  32 in their dealings with the Iroquois, the Indians right  33 to ownership and jurisdiction of their territories.  34 My lord, the plaintiffs' expert, Dr. Richard Daly,  35 who prior to his work with the Gitksan and  36 Wet'suwet'en, had studied the Iroquois in his doctoral  37 research, provided this court with some comparative  38 reference points between the Iroquois and the Gitksan  39 and Wet'suwet'en.  He said in his report:  40  41 "My research in the field of Iroquois studies in  42 Ontario has provided a useful comparative  43 context for viewing the Gitksan and  44 Wet'suwet'en cultures.  The Iroquois are  45 ostensibly quite different from the Gitksan-  46 Wet'suwet'en.  They live in a different  47 ethnographic area of the continent; they have 23747  Submisstions by Mr. Jackson  1 organized themselves in the form of a  2 confederacy of five (and later six) tribes  3 having a close linguistic affiliations with one  4 another; they lived by cultivating maize, beans  5 and squash, by hunting and trapping, fishing  6 and trading in the area south of Lake Ontario.  7 Despite these surface differences and the great  8 distance between Iroquoia and the area of the  9 Gitksan and Wet'suwet'en, there are a number of  10 striking parallels between the two areas.  11 These similarities can assist our understanding  12 of the way of life of the Gitksan and  13 Wet'suwet'en."  14  15 And it is the plaintiffs' submission, my lord,  16 that in the same way as these similarities were placed  17 before you to assist the court in understanding the  18 nature of aboriginal societies, we say that the  19 principles which govern the legal relationships  20 between the Iroquois and the Crown are of the first  21 order of significance in assisting this court in  22 identifying the principles which govern the legal  23 relationship between the Gitksan and Wet'suwet'en and  2 4 the Crown.  25 Dr. Daly, in identifying the similarities between  26 the Iroquois and the Gitksan and Wet'suwet'en had this  27 to say:  28  29 "the Iroquois possess matrilineal succession in  30 inheritance of names and rights respecting  31 kinship groupings and land, as do the Gitksan-  32 Wet'suwet'en.  The Iroquois were also located  33 between coastal peoples and interior hunters, a  34 fact which allowed them to be middlemen in a  35 long network of trade which extended from the  36 coast of what is now New England from the Gulf  37 of Mexico into the upper Great Lakes and the  38 James Bay country.  The Iroquois were active in  39 trade, barter-exchange between the peoples in  40 these different ecological zones, much as the  41 Gitksan and Wet'suwet'en had been in  42 northwestern British Columbia."  43  44  45 And, Mr. Grant addressed your lordship on that  46 yesterday.  47 2374?  Submisstions by Mr. Jackson  1 "The Iroquois have a tradition of living in  2 long, communal residences.  These longhouse  3 residences becme convenient metaphors  4 fororganizing social and proprietary groupings  5 from the minimal degree of inclusion - the  6 residnetial group - tothe maximum degree - the  7 confederacy of Iroquois nations.  As the  8 original house groupings expanded they formed  9 new groups and new chiefships.  These local  10 groups wereidentifiable by means of pictorial  11 clan insignia similar to the crest systems of  12 the Gitksan and Wet'suwet'en, who also formally  13 lived in large dwellings which housed several  14 domestic groups and who also named theri local  15 descent groups as houses.  16 Ceremonies pertaining to the dead, and to  17 succession to office are similar to those of  18 the Gitksan and Wet'suwet'en is the important  19 principle of reciprocity which permeates social  20 relationships.  The complexes of ceremonial  21 exchange in the Iroquois longhouse - related to  22 the seasonal round and the lifecycle - have  23 certain similarities with the Gitksan and  24 Wet'suwet'en feasts.  In both there is a public  25 validation and a witnessing by chiefs of all  26 serious decisions taken by the local King  27 groups especially decisions concerning the  28 commemoration of the dead and succession of  29 chiefly names."  30  31  32 My lord, at page 77 to 78, I set out and I don't  33 intend to go through it with your lordship, but I  34 commend to your lordship a brief summary in which the  35 way in which like the Gitksan and Wet'suwet'en houses  36 the Iroquois confederacy was a complex balancing of  37 political, legal and social authority.  And I would  38 note only, my lord, that the -- a point which  39 historians and anthropologists have noted of a special  40 significance about the Iroquois is the role assigned  41 to women, not only in terms of the matrilineal  42 principle of succession, but also the role given to  43 women in the designation of chiefs to positions of  44 high power.  And, again, and I don't wish to belabour  45 this point, I note that my friends in their arguments  46 have made the point that the principle of matrilineal  47 succession, which characterizes the plaintiffs' social 23749  Submisstions by Mr. Jackson  1 political system is one which they say your lordship  2 should not give effect to in terms of any declaration  3 of this court because to do would offend the principle  4 of sexual quality guaranteed by Section 15.  We will  5 come back to that in due course, my lord, but I only  6 say that in terms of the historical, the way in which  7 the Iroquois have always accorded special respect, not  8 only as a matter of social grace, but as a way of  9 legal and political responsibility to women, has been  10 seen as a hallmark of civilized societies rather than  11 a hallmark of sexual discrimination.  12 My lord, at page 78, at the bottom of the page,  13 legal and political relationships between the Iroquois  14 confederacy and the English colonies, centred upon the  15 covenant chain.  And this, reflected in metaphorical  16 terms, how the Indian nations saw the evolution and  17 nature of their relationship with the English.  18 Covenant chain diplomacy brought to the process of  19 political accomodation and the transfer of territorial  20 rights, Indian diplomatic protocol and legal  21 convention.  It is our submission that a careful  22 examination of covenant chain treaties reveals how the  23 principles govern the political and legal  24 relationships were forged as a result of covenant  25 chain diplomacy.  In particular, an examination of  26 covenant chain treaties provides an important insight  27 into how Indian nations perceived the nature of Crown  28 protection in terms of their existing rights of  29 ownership and jurisdiction.  It is also our submission  30 that both in relation to the articulation of the  31 fundamental principles and the legal process govern  32 the Indian-Crown relations, the principle of Indian  33 consent and the and the process of public treaty  34 making and in the establishment of a boundary between  35 colonial settlement and Indian hunting territories  36 along the Allegheny divide, the Covenant Chain  37 treaties pre-figure essential elements of the Royal  38 Proclamation of 1763.  39 That is significant, my lord, because to the extent  40 the Royal Proclamation has been characterized in the  41 St. Catherine Mills case, as one in which the rights  42 accorded to the Indians under it are dependent upon  43 the goodwill of the sovereign and understanding how  44 those principles in the proclamation came about as a  45 result of consentual treaty making between the  46 Iroquois and the Crown demonstrates, in our  47 submission, that the relationship was premised upon 23750  Submisstions by Mr. Jackson  1 consent, that aboriginal rights or pre-existing  2 rights, changes to which only can be made with Indian  3 consent and that the characterization of those rights  4 existing at the pleasure of the Crown, is misconceived  5 in history and it's misconceived in law.  6 The covenant chain, my lord, which symbolically  7 linked the Six Nations with the English originated in  8 the early treaties with the Dutch.  And the first  9 treaty concluded between the English colonists and the  10 Iroquois was made shortly after the English conquest  11 of New Netherlands in 1664.  And I am turning now to  12 page 80, my lord, the second paragraph.  13 The colony of New York sought to play a  14 predominant role in covenant chain diplomacy with the  15 Iroquois but over the course of the next century, many  16 of the other colonies were drawn into the treaty  17 process:  Pennsylvania, Virginia and Maryland  18 especially.  The most eloquent statement, my lord,  19 that I have come across of the nature of the covenant  20 chain was expressed in a statement by the Iroquois  21 chief, Canassatego, who was one of the principal  22 diplomats and spokesman for the Iroquois, at the  23 Treaty of Lancaster in 1744 in response to the  24 governor of Maryland.  Responding to the governor of  25 Maryland Chief Canassatego said:  26  27 "When you mentioned the Affair of the Land  28 Yesterday, you went back to old Times, and told  29 us, you had been in Possession of the Province  30 of Maryland above One Hundred Years; but what  31 is One Hundred Years in comparison of the  32 Length of time since our Claim began?  since we  33 came out of the Ground? For we must tell you,  34 that long before One Hundred Years our  35 Ancestors came out of this very ground, and  36 their children have remained here ever since.  37 You came out of the ground in a country that  38 lies beyond the seas.  There you may have a  39 just claim.  But here you must allow us to be  40 your elder bretheren and the lands still  41 belonging to us long before you knew anything  42 of them."  43  44  45 My lord, that statement is one which I think your  46 lordship will recognize is one which the plaintiffs in  47 this case have made in a variety of forms.  I note my 23751  Submisstions by Mr. Jackson  1 friends have suggested in their arguments that the  2 plaintiffs' claims, expressed formally from time to  3 time, are in their views, the machinations of  4 missionaries suggested by the machinations of lawyers.  5 I am not aware, my lord, of any missionary, of any  6 lawyer standing by Canassatego when he expressed  7 exactly the same sentiments in 1744.  8  9  10 "It is true that above 100 years ago the Dutch  11 came here in a ship and brought with them  12 several goods; such as Awls, Knives, Hatchets,  13 guns, and many other particulars wich they gave  14 us; and when they taught us how to use their  15 things, and we saw what sort of People they  16 were, we were so well leased with them, that we  17 tied their Ship to the Bushes on the Shore; and  18 afterwards, liking them still better the longer  19 they staid with us, and thinking the Bushes to  20 slender, we removed the rope, and tied it to  21 the Trees; and as the Trees were liable to be  22 blown down by high winds, or to decay  23 themselves, we, from the Affection we bore  24 them, again removed the Rope, and tied it to a  25 strong and big rock.  (here the interpreter  26 says this means the Oneido country)..."  27  28 One of the territories of the Six Nations.  29  30 "and not content with this, for its further  31 Security we removed the Rope to the big  32 Mountain (here the interpreter says they mean  33 the Onandago Country) and there we tied it very  34 fast, and rowlled Wampum about it; and, to make  35 it still more secure, we stood upon the Wampum,  36 and sat down upon it, to defend it, and did our  37 best  Endeavours that it might remain uninjured  38 forever. During all this time the New-comers,  39 the Dutch acknowledged our Right to the Lands,  40 and sollicited us, from Time to Time, to grant  41 them Parts of our Country, and to enter into  42 League and Covenant with us, and to become one  43 People with us.  44 After this the English came into the country  45 and as we were told became one people with the  46 Dutch.  About two years after Arrival of the  47 English, an English Governor came to Albany and 23752  Submisstions by Mr. Jackson  1 finding what great friendships subsisted  2 between us and the Dutch, he approved it  3 mightily, and desired to make as strong a  4 league, and be upon as good terms with us as  5 the Dutch were, with whom he was united, and to  6 become one People with us: And by his further  7 care in looking into what had passed between  8 us, he found that the Rope which tied the Ship  9 to the great Mountain was only fastened with  10 Wampum, which was liable to break and rot, and  11 to perish in a Course of Years; he therefore  12 told us, he would give us a Silver chain, which  13 would be much stronger, and would last for  14 ever.  This we accepted, and fastened the ship  15 with it, and it has lasted ever since."  16  17 The covenant chain, my lord, was not only of great  18 symbolic and metaphorical importance, but of great  19 legal significance in the 18th century.  20 A Canadian legal scholar, page 82, my lord, Dr.  21 John Hurley, has recently analyzed a number of the  22 legal aspects of the relationship between the Iroquois  23 and the French and English colonial authorities which  24 bear direct relevance to that part of the plaintiffs'  25 claim which asserts a continuing Gitksan and  26 Wet'suwet'en jurisdiction as a part of their  27 aboriginal rights.  28 The the bottom of page 82, my lord, one of the  29 issues which Dr. Hurley's work addresses is the nature  30 of sovereignty.  Traditionally, sovereignty has been  31 regarded as an absolute.  An entity either was  32 sovereign or it was not.  Gradations of sovereignty  33 were not recognized.  Moreover, sovereignty was  34 supposed to be indivisible.  In respect of any  35 political society, only one authority could be  36 sovereign.   Hurley's work questions whether this  37 unqualified view of sovereignty elaborated in the  38 doctrine of the Law Of Nations, corresponding to the  39 realities of power on the ground in North America.  40 As a result of detailed analysis of French-  41 Iroquois, English-Iroquois and English-French  42 diplomatic and military encounters in the 17th and  43 early 18th centuries, Hurley argues that the French  44 and English assertions of sovereignty over Iroquois  45 were, in effect, assertions of relative sovereignty.  46 The question was not so much whether France or England  47 possessed sovereignty over Iroquoia so much as which 23753  Submisstions by Mr. Jackson  1 of France or England possessed, as between themselves,  2 the better title to such sovereignty.  3 The bottom of page 83, my lord, it was something  4 like a right of pre-emption in the municipal law of  5 property, for although not itself a right of  6 sovereignty, it entailed an exclusive right to acquire  7 sovereignty.  The importance of this analysis, my  8 lord, is that as will be shown later in this argument,  9 it parallels the jurisprudence originally developed in  10 the 19th century by Chief Justice Marshall in relation  11 to aboriginal rights to property, which in giving an  12 underlying title to the European power through the  13 doctrine of discovery, only gave the pre-emtive right  14 to acquire by purchase the property interest of the  15 Indian nations occupying the territory.  The concept  16 of a parallel pre-emptive right to sovereignty or  17 jurisdiction has not been well developed in Canadian  18 case law.  But it is submitted that Hurley's analysis  19 of state practice in the 17th century and the  20 negotiations with the Iroquois, provide a historical  21 foundation for this concept.  This, my lord, relates  22 in many ways to the point I made before about the  23 jurisdictional claims of the plaintiffs being sui  24 generis and not well conceptualized in terms of all or  25 nothing concepts which are traditionally applied to  26 this area.  27 Page 86, my lord, I quote from a French memoranda,  28 prepared in 1699, which is found in Dr. Hurley's  2 9 documents, which contains the way in which the French  30 understood their understanding of the Iroquois  31 position.  And at page 86, that understanding is  32 expressed in this way:  33  34 "It was by sufferance they allowed the European  35 to come and settle in their vicinity on lands  36 dependent upon them and on which the English  37 did not locate until they paid them the price  38 and indemnity of those lands; that their  39 frontier was occupied only by their permission  40 and that, therefore, they only to return to him  41 who had sent him and tell him that they were  42 free and neutre, and they did not acknowledge  43 the dominion of any power whatsoever."  44  45  46 My lord, the French characterization of the  47 Iroquois assertions of their ownership and 23754  Submisstions by Mr. Jackson  1 jurisdiction, that the English were there by  2 sufferance of them, is the reverse of what some judges  3 have suggested is the relationship between aboriginal  4 rights and Crown rights.  Some judges have asserted  5 that aboriginal rights exists by sufferance of the  6 Crown.  And that is, as we understand it, is the  7 position adopted by the provincial defendant.  Again,  8 the historical record speaks otherwise and that is a  9 point again to which we will return in dealing with  10 both Canadian and American cases in the 19th and 20th  11 century.  12 The bottom of page 86, the relationship between the  13 Iroquois, the English and the French is not only of  14 significance in understanding the nature of European  15 claims to sovereignty, but it also sheds important  16 light on the nature of Crown title to property within  17 Indian territory and the concept of Crown protection.  18 In a series of treaties in 1688, 1701 and 1726, which  19 collectively are known as The Iroquois Deeds, the Six  20 Nations transferred lands to the governor of New York.  21 In the first of these deeds, my lord, in 1688, the  22 Iroquois chiefs declared to Governor Dongan of New  23 York:  24  25 "We are the just and rightful owners of all of  26 our lands and those which the French now  27 pretend, which we have long since given and  28 granted to the King of England and now His  29 Excellency who representats his Majesy's sacred  30 person is the owner of those lands and must not  31 suffer any encroachments upon the great King of  32 England's territories."  33  34 Now, Dr. Hurley in analyzing this language, poses  35 the question, how are we to a reconcile the apparently  36 contradictory positions whereby on the one hand the  37 Iroquois assert the ownership of their lands and on  38 the other declare that they have long since given and  39 granted them to the King of England?  He answers that  40 question, by concluding that the intention of the  41 Iroquois to cede their land in trust to the English  42 Crown.  Under this arrangement the Crown was to  43 protect the Iroquois in the possession of their lands,  44 defending them against French encroachments, in return  45 they transferred to the Crown the nominal sovereignty  46 designed to forestall any French claims.  47 On page 88 Hurley turns his attention to the deed 23755  Submisstions by Mr. Jackson  1 of 1701.  This deed was signed shortly after the  2 Iroquois had concluded a peace treaty with France and  3 under this deed they ceded their western lands to the  4 English Crown.  5 Of some significance here, my lord, these western  6 lands consisted not of the aboriginal territory of the  7 Iroquois but lands they had acquired early in the 17th  8 century by right of conquest from other Indians around  9 the Great Lakes, principally the Hurons.  And the  10 deed, after describing the lands concerned and setting  11 out the Iroquois titles of conquest and peaceful  12 possession, states, page 88:  13  14 "Whereas the governor of Canada has lately sent  15 a considerably force to Detroit, the principal  16 post that commands said land to build a fort  17 there, without our leave, by which means they  18 will possess themselves of that excellent  19 country... and will also be masters of the  20 beaver hunting whereby we shall be deprived of  21 our livelihood and brought to perpetual  22 slavery, and we having subjected ourselves and  23 our lands on this side of Cadarachqui Lake,  24 wholly to the Crown of England...have freely  25 and voluntarily surrendered and delivered up  26 unto our Great Lord and Master, the King of  27 England, called by us Corachkoe and by  28 Christians William III... provided. ..we have  29 free hunting for us and our descendants  30 forever, and that free of all disturbances,  31 expecting to be protected therein by the Crown  32 of England."  33  34  35 Doctor Hurley suggests that and concludes that this  36 cession, fragments ownership of the land between the  37 Iroquois and the Crown.  Second paragraph, what the  38 Iroquois reserved to themselves was their hunting in  39 perpetuity, free of all disturbances.  The principal  40 resource harvesting to which these western lands of  41 Iroquoia were put was beaver hunting.  They were not  42 lands important to the Iroquois for horticulture - the  43 other sector of their economy.  It is natural,  44 therefore, that the reservation of the Iroquois use  45 should be framed in terms of the principal economic  46 activity for which it was valued, that is hunting.  47 What the Iroquois reserved, therefore, was the 23756  Submisstions by Mr. Jackson  1 beneficial interest in these lands or rendered in  2 terms of English law the dominion utile.  This, my  3 lord, is an interpretation which is remarkably similar  4 to that which the Dene and the Beaver Indians placed  5 on the land in treaties 8 and 11, negotiated in 1898  6 and 1900 and 1921.  7 And I have given you the citations there to a  8 decision of Mr. Justice Morrow in Re Paulette, a case  9 to which I will be returning.  But if the Iroquois  10 reserved to themselves the beneficial interest, the  11 title which they surrendered to the Crown must have  12 been something else.  This could only be the dominion  13 directum, or as it later came to be expressed in 19th  14 century case law, the underlying or radical title.  15 The Iroquois reserved to them, dominion utile  16 directum, their original title must have comprised  17 both.  It must therefore have been the principle  18 plenum dominion, to use the language of the Privy  19 Council in the St. Catherine's Milling case.  20 Now, the Iroquois conditioned their cession of the  21 radical underlying title upon the Crown's acceptance  22 of the obligation to protect the Iroquois lands for  23 their exclusive use.  In so doing, the Crown undertook  24 a fiduciary obligation to the Iroquois.  25 It is submitted, my lord, that three conclusions  26 are to be drown from the 1701 cession:  First,  27 together with the previous 1688 cession, it provides  28 the historical foundation for the fiduciary obligation  29 of the Crown to protect Indian lands now recognized by  30 the Supreme Court in Guerin as one of the incidents of  31 aboriginal title.  Second, the constitutional process  32 for the acquisition of any interest in Indian lands  33 was through the process of Indian consent.  34 Now, the third conclusion, my lord, and it's one  35 to which we will be returning, flows from the fact  36 that the lands which were the subject of the 1701  37 cession were not part of original Iroquoia.  As I have  38 said, these lands were part of territories which were  39 conquered from other Indian nations, some of which  40 pre-dated the cession by not more than 30 years.  41 There was no suggestion by the English that these  42 lands were not properly the subject of grant or  43 cession under the deed.  And we say, my lord, that  44 this transaction casts a historical shadow on the  45 validity of one of the criteria for establishing  46 aboriginal title enunciated by Mr. Justice Mahoney in  47 the Baker Lake case.  Your lordship will recall that 23757  Submisstions by Mr. Jackson  1 one of those criteria is that aboriginal occupation or  2 possession must be an established fact at the time of  3 the assertion of Crown sovereignty.  We will have much  4 to say about that asserted proposition, my lord, but  5 to the extent that the Crown asserted sovereignty in  6 this territory much earlier than 30 years prior to the  7 acquisition of these lands, these lands under Mr.  8 Justice Mahoney's articulation of the test, could not  9 have been lands properly belonging to the Iroquoia,  10 and yet never was it suggested that that was the case  11 or that these lands could not be the subject of a  12 grant.  13 As I say, my lord, we will revisit that particular  14 proposition.  15 The third of the Iroquois deeds was signed by three  16 of the Iroquois nations, the Seneca, Cayuga and  17 Onondaga in September of 1726 and whereas, at the top  18 of 93, my lord, the 1701 cession was motivated by  19 Iroquois concerns over French encroachment around  20 Detroit.  This time it was French military intrusion  21 around Niagara.  The major difference between the 1720  22 cession is that it included not only the lands which  23 were subject to the 1701 deeds, the conquered western  24 territories of the Iroquois, but also the aboriginal  25 lands of the three nations.  The operative part of the  26 deed grants to the King "all the said land and beaver  27 hunting to be protected and defended by his said  28 majesty, his heirs and successors, to and for the use  29 of us, our heirs and successors in the said three  30 nations."   My lord, the language could not be more  31 explicit in characterizing the fiduciary obligation of  32 the Crown to protect the exclusive beneficial use of  33 the land for the Indians.  34 This particular deed of 1726 was the subject of a  35 legal characterization by Peter Wraxall, the secretary  36 of Indian Affairs Sir William Johnson, some 30 years  37 later in 1756, where Wraxall said of this deed:  38  39 "That memorable and important act by which the  40 Indian put their patrimonial and conquered  41 lands under the protection of the King of Great  42 Britain, their father, against encroachments or  43 invasions of the French is not understood by  44 them as a cession or surrender as it seems to  45 have ignorantly or wilfully supposed by some.  46 They intended to look upon it as reserving the  47 property and possession of the soil to 2375?  Submisstions by Mr. Jackson  1 themselves and their heirs."  2  3 Again, my lord, we have the language of property,  4 the language of possession, we don't have the language  5 of use and occupation as some lesser and derivative  6 right.  7 My lord, at page 93, illustrative of the  8 diplomatic sophistication of the Iroquois, shortly  9 before they signed the 1701 deed, placing certain of  10 their lands under the protection of the governor of  11 New York, they concluded the grand settlement with  12 France, which after a century of almost intermittent  13 warfare with the French, ushered into a period in  14 which the Iroquois adopted a policy of neutrality  15 between the two European powers.  16 And while the Grant Settlement of 1700 signalled  17 the beginning of a long period of peace between the  18 Six Nations and the French, it also saw the beginning  19 of more intensive diplomatic relationships between the  20 Six Nations and the English colonial authorities,  21 particularly Virginia and Pennsylvania.  The colonial  22 representatives in these two colonies sought to  23 provide a more effective protection for their  24 tributary Indians by renewing their previous treaties  25 with the Iroquois, but this time in addition defining  26 a boundary line between them and the Iroquois.  And  27 the treaty concluded by Governor Spotswood in Virginia  28 with the Iroquois in 1722, the boundary established  29 was the Potowmack and Allegheny Mountains, a very  30 early pre-figuration of the Royal Proclamation  31 boundary line.  32 Now, my lord, at page 94 to 130, the materials, and  33 I will be going to these materials with some  34 particularity, those pages illustrate the pattern of  35 covenant chain treaty making, and how the process of  36 the public treaty council was the principal vehicle  37 for addressing first the recurring conflicts between  38 Iroquois territorial rights and the pressures of  39 colonial development, and, secondly, the maintenance  40 of Iroquois alliance as a shield against French  41 expansionism.  42 THE COURT:  I am sorry, Iroquois alliance?  43 MR. JACKSON:  As a shield against French expansionism.  44 THE COURT:  Iroquois alliance with the English then?  4 5    MR. JACKSON:  Yes.  4 6    THE COURT:  Thank you.  47    MR. JACKSON:  And I would turn your lordship's attention to page 23759  Submisstions by Mr. Jackson  1 96 and the material there refers, my lord, to a treaty  2 council in 1736 in which 19 of the chiefs of the  3 Onondaga Council, the Onondaga Council was the council  4 of the confederacy, so this was a delegation of all  5 the Six Nations, consisting of more than 100 Indians  6 met with represenatives of Pennsylvania and this  7 particular treaty council is in Exhibit 1244 at tab  8 60.  9 And, my lord, if you look at tab 60, dealing with  10 the text of the treaty, I would just draw your  11 lordship's attention to under the heading Indian  12 Treaties at Stenton and Philadelphia, you see a  13 designation "Printed by Benjamin Franklin."  One of  14 the reasons why we have a documented record of this  15 treaty council, and many other treaty councils, is  16 because they were perceived as a special significance  17 in the relationship between the colonial authorities  18 and the Indian nations, and Benjamin Franklin, before  19 he became a statesman and then an elder statesman of  20 American confederation, was first and foremost a  21 printer and seeing in these treaty councils something  22 of historical significance, he regularly published  23 these councils and therefore they circulated as part  24 of the literature and public record in 18th century  25 Pennsylvania.  You get a sense of what these treaty  26 councils were about from contemporary accounts and Mr.  27 Morrison referred to this and I have summarized at  28 page 96, my lord, what in fact these treaty councils  29 were about.  The meeting took place in the great  30 meeting house in Philadelphia, before a very large  31 audience which filled the main floor and galleries,  32 the written record of the treaty gives a sense of  33 protocol and the formality of treaty making which  34 characterized Covenant Chain diplomacy.  Kanichungo,  35 the Iroquois speaker, thanked the Pennsylvanians for  36 their friendliness towards the Six Nations and for  37 providing a council "fire" in their city.  On this he  38 presented a large wampum belt with four black St.  39 George's cross worked into it. With a bundle of skins  40 he symbolically opened a "road" between Philadelphia  41 and Onondaga and expressed the Indians hope that it  42 would never be blocked "while the earth endureth".  43 With a large beaver coat he brightened the "Chain" of  44 friendship between the Six Nations and Pennsylvania  45 and the other English colonies.  As Mr. Marsden  46 explained the Iroquois reference to the "fire" the  47 "road" and the "chain" of friendship were all 23760  Submisstions by Mr. Jackson  1 important Indian symbols of the formal ratification of  2 the Covenant Chain Alliance.  Now what is of  3 particular significance, my lord, is that these  4 metaphors, this diplomatic discourse, was conducted  5 as part of the diplomatic discourse by colonial  6 representatives, they had to learn the Iroquois  7 conventions in order to diplomatic business with the  8 Iroquois.  And you had a   coming together in this  9 treaty council of British diplomatic convention and a  10 coming together of Iroquois diplomatic convention.  11 Also of significance is the statement at page 97  12 in which Kanickhungo referred to Iroquois tradition of  13 oral history, about which your lordship has heard so  14 much.  My colleague, Mr. Grant, addressed you  15 yesterday and the day before.  Kanickhungo addressing  16 himself to the delegates, said:  17  18 "We who are now here, are old men, who have the  19 direction of affairs in our Nations; and as we  20 are old, it may be thought that the memory of  21 these things are lost with us, who have not,  22 like you, the art of preserving by committing  23 all transactions to writing.  We nevertheless  24 have methods of transmitting from father to son  25 an account of all of these things whereby you  26 will find the remembrance of them is faithfully  27 preserved, are our succeeding generations are  28 made acquainted of what has passed, that it may  29 not be forgotten as long as the earth remains."  30  31  32 And, my lord, Dr. Daly in his opinion report, and  33 Mr. Grant in his submissions to you, reviewed the  34 striking parallels between the Iroquois and the  35 Gitksan and Wet'suwet'en in terms of the crucial role  36 which oral history plays in both societies and the  37 manner in which the remembrance thereof, in a faithful  38 way, is carried on and transmitted.  39 My lord that would be a convenient place to take  40 the break.  41 THE COURT:  All right.  Thank you.  42  43  44  45  46  47 23761  Submisstions by Mr. Jackson  1 I hereby certify the foregoing to be  2 a true and accurate transcript of the  3 proceedings herein to the best of my  4 skill and ability.  5  6  7  8 Wilf Roy  9 Official Reporter  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 23762  Submissions by Mr. Jackson  1 THE REGISTRAR:  Order in court.  2 THE COURT:  Mr. Jackson?  3 MR. JACKSON:  Yes, my lord.  When we took the break, my lord, we  4 were at 1736.  5 THE COURT:  I don't know.  I was on page 97.  6 MR. JACKSON:  Page 97, but 1736.  7 THE COURT:  All right.  8 MR. JACKSON:  Flooring our way to the future.  9 THE COURT:  All right.  10 MR. JACKSON:  My lord, I spoke last of the Treaty Council in  11 Philadelphia in 1736.  If you turn to page 98, you  12 will see that six years later, in 1742, the Six  13 Nations, with an even larger delegation, returned to  14 Philadelphia.  The subject matter of the negotiations,  15 the Iroquois' relationships with France, and the  16 encroachment by English settlers on Indian lands,  17 provide the principle agenda for discussions for the  18 next 30 years.  19 Indeed at the time of the Royal Proclamation.  20 The speeches made during the treaty negotiations  21 in 1742 are evidentiary support for the plaintiffs'  22 argument that the principles of Indian consent and  23 public purchase of Indian lands in the name of the  24 Crown or the Crown's representative, two of the  25 central features of the Royal Proclamation of 1763,  26 emerge from the Convenant Chain treaty process.  At  27 the very beginning of the proceedings, Chief  28 Canassateego, the Onondago chief, conveyed the Six  29 Nations' apologies for the fact that, contrary to the  30 undertakings the Six Nations had given in 1736 that  31 they would not sell land within the Province of  32 Pennsylvania to any other than the proprietor of  33 Pennsylvania.  Several of the young warriors had sold  34 two plantations on the River Cohongoronto.  The  35 Iroquois hastened to add this transaction was made  36 "without our privity or consent", and that the  37 Onondago Council would return the purchase price to  38 the white people who had made the purchase, and that  39 the Iroquois would "not confirm such bargains nor any  40 other that may interfere with our engagement to our  41 brother Onas".  42 Remember, my lord, that was the Iroquois name of  43 the proprietor of Pennsylvania.  The Governor of  44 Pennysylvania requested that the Iroquois, upon their  45 return home, issue a public notice to all their  46 warriors not to bargain for any land within  47 Pennysylvania.  The Onondago chief promised to give 23763  Submissions by Mr. Jackson  1 such public notice.  2 What is important about this exchange is that the  3 Iroquois in characterizing the sale of lands to any  4 other than the proprietor as "a the high breach of the  5 league of friendship", thus recognizing Penn's  6 exclusive right to purchase Indian land, expressed  7 their agreement with this restriction on their right  8 to free alienation.  Now, the restraint on alienation  9 of Indian land to any other than the Crown has  10 subsequently been viewed in the jurisprudence as a  11 common law incident of Indian title.  As both the  12 original undertaking of 1736 and the Iroquois response  13 to its breach in 1743 demonstrate, this restraint in  14 the case of the Six Nations was one which originated  15 through negotiation and consent.  16 Over to page 100, my lord.  17 Canassateego also renewed a complaint first made  18 in 1736 that land which belonged to them by right of  19 conquest, which lands were within the boundaries of  20 Maryland and Virginia, were being settled without  21 prior negotiation with the Iroquois.  They renewed  22 their request to the Governor of Pennysylvania to  23 write to Maryland and Virginia informing the  24 authorities that the Iroquois expects, as owners of  25 the land, to receive such a consideration for it as  26 the land is worth.  The Onondago chief followed up his  27 request with the implied threat "we desire you will  28 press him to send us a positive answer: let him say  29 yes or no: if he says yes we will treat with him; if  30 no, we are able to do ourselves justice, and we will  31 do it by going to take payment ourselves".  32 Page 101, my lord, the middle paragraph.  The  33 boundary of Pennysylvania raised with the Six Nations  34 is a complaint he had regarding the behaviours of the  35 Delawares.  These were tributaries of the Six Nations.  36 Pennsylvania asserted that the Delawares were  37 disturbing white settlers who had legally seated  38 themselves on lands previously surrendered by the  39 Delawares.  The governor indicated, just as the Six  40 Nations had asked Pennysylvania to remove its  41 trespassers from Indian lands, so Pennysylvania asked  42 the Six Nations to remove the trespassing Delawares  43 from this purchased land.  In this way, the Government  44 of Pennsylvania explicitly recognized the jurisdiction  45 of the Six Nations to enforce the treaty obligations  46 of its tributary, even though, in this case, it  47 involved extra territorial enforcement within lands 23764  Submissions by Mr. Jackson  1 lawfully acquired by Pennsylvania.  2 Canassateego, addressing himself to the Delawares,  3 questioned both the right of the Delawares to sell  4 this land at all, and the method by which they had  5 sold it.  6 This is significant, my lord, because it casts  7 important light on what the Iroquois perceived to be  8 the proper legal procedures for the cession of Indian  9 land.  10 And addressing themselves to their Delaware  11 brethren, Canassateego said:  12  13 "But what makes you sell land in the dark?  Did  14 you ever tell us that you had sold this land?  15 Did we ever receive any part, even the value of  16 a pipe-shank from you for it...this is acting  17 in the dark, and very different from the  18 conduct our Six Nations observe in their sales  19 of land, on such occasions they give public  20 notice and they invite all the Indians of the  21 United Nations and give them the share of the  22 presence they receive for their lands.  This is  23 the behaviour of the wise United Nations."  24  25 And again, my lord, we see that one of the  26 critical elements of Indian policy later affirmed in  27 the Royal Proclamation - public sale from the Indians  28 assembled in council - eminates from the procedures  29 set out by the Iroquois themselves.  30 Two years after this treaty and following a  31 skirmish between the Iroquois warriors and Virginia  32 frontiersmen which threatened to spark off hostilities  33 between the Six Nations and Virginia, Governor Thomas  34 and Pennysylvania, acting as mediator, arranged for a  35 conference at Lancaster between the Governments of  36 Virginia and Maryland.  As with the treaty of 1742,  37 the completeness of the record relating to the  38 speeches made by the Six Nations cessions and the  39 responses thereto by colonial representatives provide  40 further evidence of both how Indian and colonial  41 governments understood the nature of their respective  42 rights of ownership and jurisdiction.  43 And this again is a treaty council which was  44 published by Benjamin Franklin, president.  45 The Treaty of Lancaster of 1744 was referred to in  46 the evidence of Mr. Morrison both to illustrate the  47 nature of Covenant Chain diplomacy and protocol and to 23765  Submissions by Mr. Jackson  1 demonstrate how the negotiations reflected the  2 principles and process regarding Indian colonial  3 relationships, particularly with regard to land.  4 The agenda for the conference embraced the status of  5 lands within Virginia and Maryland, which the Six  6 Nations claimed by right of conquest and which had  7 been settled by whites from the two colonies without  8 Iroquois consent or any purchase made from them.  The  9 issue turned on the proper interpretation of the  10 Treaty of 1722 with Virginia, which drew a boundary  11 line between the Six Nations and Virginia along the  12 Allegheny Mountains and the Potomac River across which  13 the Iroquois promised not to cross without a passport  14 from New York or Virginia.  The Iroquois maintained  15 that an equally binding reciprocal covenant was to be  16 implied that Virginia settlers would not come across  17 the mountains to settle, without Iroquois consent, and  18 this the Iroquois maintained they had done in  19 violation of the treaty.  20 At page 104, my lord, in the second paragraph.  21 The commissioners of Maryland, in reviewing the  22 recent history of the Six Nations' complaints of  23 injury from Maryland through the settlement of its  24 colonists on lands claimed by the Six Nations, made  25 specific reference to the implied threat made to  26 Maryland through the Governor of Pennysylvania that if  27 Maryland was not prepared to treat about these lands  28 they would do justice themselves.  The Maryland  29 commissioners referred to this threat as "designed to  30 terrify us", and they indicated that they took great  31 offence to such a threat.  Canassateego, who was again  32 the chief spokesman for the Six Nations, replied:  33  34 "When we found that you had paid no regards to  35 our just demand...we were resolved to use such  36 expressions as would make the greatest  37 impressions on your minds, and we find it had  38 its effect...We had no design to terrify you,  39 but to put you on doing us the justice you had  40 so long delayed."  41  42 It is submitted, my lord, that Canassateego's  43 words accurately describe what this litigation is all  44 about.  It is designed to obtain, through court  45 declarations, the justice which has been so long  46 denied the Gitksan and Wet'suwet'en plaintiffs.  47 Now, my lord, pages 105 and 108.  I wouldn't be 23766  Submissions by Mr. Jackson  1 going into these in any depth, but what they trace is  2 the competing assertions of the Iroquois on the one  3 hand, and the colonial authorities of Virginia and  4 Maryland on the other hand as to their respective  5 titles.  Virginia enquired by what conquest did the  6 Iroquois claim lands.  The Iroquois for their part  7 asked Maryland why it was not observing the spirit in  8 terms of the treaties they had negotiated with the  9 Iroquois.  In the event after the dissertation, the  10 competing assertions, the Iroquois agreed to cede the  11 lands in dispute for appropriate compensation to  12 Maryland, thereby perfecting the title of the Maryland  13 settlers.  14 At the bottom of page 108 I make reference to one  15 other matter which was discussed during the  16 negotiations at the Treaty of Lancaster, and this  17 related to the outbreak of war in Europe between  18 England and France.  And as was common at these treaty  19 councils, the Six Nations were briefed on the state of  20 the war and the English successes at sea.  The  21 Government of Pennysylvania informed the Iroquois that  22 in light of the Covenant Chain the English expected  23 that the Six Nations would not suffer the French or  24 any of the Indians in alliance with them to march  25 through Iroquoia to disturb any of the English  26 settlements.  In replying to that Canasseteego stated,  27 and I'm just going to refer Your Lordship to the very  28 last part of that first quote:  29  30 "We have put the spirit of antipathy against the  31 French in those people.  Our interest is very  32 considerable with them, and many other nations,  33 and as far as ever it extends, we shall use it  34 for your service."  35  36 And in his final speech addressed to the Governor  37 of Maryland, Canasseteego returned to the theme of the  38 Covenant Chain.  39  40 "You told us you yesterday, that since there was  41 now nothing in controversy between us, and the  42 affair of the land was settled to your  43 satisfaction, you would now brighten the chain  44 of friendship, which has subsisted between you  45 and us ever since we became Brethren; we are  46 well pleased with the proposition, and we thank  47 you for it.  We also are inclined to renew all 23767  Submissions by Mr. Jackson  1 treaties, and keep a good correspondence with  2 you.  You told us further, if ever we should  3 perceive the Chain has contracted any rust, to  4 let you know, and you would take care to take  5 the rust out, and preserve it bright.  We agree  6 with you in this, and shall, on our part, do  7 everything to preserve a good understanding,  8 and to live in the same friendship with you as  9 our brother Onas, the Iroquois name for the  10 Governor of Pennsylvania, and Assaragoa, the  11 Iroquois name for the Governor of Virgina, in  12 confirmation whereof, we give you this belt of  13 wampum."  14  15 The Treaty of Lancaster ended with an exchange of  16 wit and pleasantries which would not have been out of  17 place in the diplomatic courts of Europe.  18  19 "Canasseteego said, we mentioned to you  20 yesterday the booty you had taken from the  21 French, and asked you for some of the rum which  22 was supposed to be part of it, and you gave us  23 some, but it turned out unfortunately that you  24 gave us it in French glasses, we now desire you  25 you will give us some in English glasses.  26 The governor made answer, We are glad to hear  27 you have such a dislike for what is French.  28 They cheat you in your glass, as well as in  29 everything else.  You must consider we are at a  30 distance from Williamsburg, Annapolis and  31 Philadelphia, where our rum stores are, and  32 that although we brought up a good quantity  33 with us, you have almost drunk it out, but  34 notwithstanding this we have enough left to  35 fill our English glasses, and will show the  36 difference between the narrowness of the  37 French, and the generosity of your brethren the  38 English towards you."  39  40 Such was the nature of the discourse, my lord, in  41 the treaty councils between the Iroquois and the  42 colonial authorities.  They were characterized by  43 legal and diplomatic protocol.  44 At page 111, my lord.  In 1744 the war of the —  45 THE COURT:  Are you leaving the Pennysylvania story?  4 6    MR. JACKSON:  Am I —  47    THE COURT:  Are you leaving the Pennsylvania part of this? 2376?  Submissions by Mr. Jackson  1 MR. JACKSON:  No, my lord.  In this part, even though a lot of  2 these treaties are with Pennsylvania, the  3 relationships I am talking about are the treaty made  4 between the Six Nations and Pennysylvania, Virginia  5 and Maryland.  6 THE COURT:  I was wondering if the litigation between  7 Pennysylvania and Baltimore came into this.  I don't  8 remember when it was.  9 MR. JACKSON:  I'm not — I don't know either, my lord.  10 THE COURT:  All right.  11 MR. JACKSON:  In 1744 the war of the Austrian succession again  12 employed England and France in hostilities both in  13 Europe and in North America.  In early 1745 a  14 situation developed along the New York frontiers that  15 officials in the northern British provinces perceived  16 as reaching crisis proportions.  The French and their  17 Indian allies had penetrated deep into British claimed  18 territory south of Montreal, and were threatening a  19 full scaled attack on a number of poorly fortified  20 British outposts south of Lake Champlain.  The  21 critical and strategic importance of the Iroquois  22 Confederacy was once again made painfully clear to  23 colonial authorities, and an attempt at intercolonial  24 cooperation was mounted in a conference at Albany in  25 1745 with the Six Nations to secure nature military  26 assistance.  27 And turning to page 112, my lord, the last  28 paragraph.  29 During the course of the discussions at Albany,  30 the Six Nations again raised their concerns regarding  31 encroachments on their lands.  The Mohawks in  32 particular complained of land frauds, and their chief  33 spokesman, Hendrick, expressed the fear that the  34 British were trying to force his people off their land  35 completely.  Although the Governor of New York said  36 that he would examine all the Mohawk complaints and  37 deal with them before the end of the treaty, this was  38 not done, much to the annoyance of the Indians.  39 Over on page 113, my lord.  40 The failure of the attempted intercolonial  41 strategy to prevail on the Six Nations to side with  42 the British, did cause some reassessment in New York  43 on Indian policy.  Hitherto a board of Indian  44 commissioners at Albany had the major say in shaping  45 that policy.  However, the commissioners were more  46 concerned with the maintenance of the fur trades than  47 with colonial security, and Governor Clinton believed 23769  Submissions by Mr. Jackson  1 that a more independent voice for the administration  2 of Indian affairs, with authority directed from the  3 provincial governor, would assure the Indians a more  4 even-handed approach.  As a first measure to  5 centralize authority in his own hands, Clinton  6 appointed William Johnston as "Colonel of the Forces  7 of the Six Nations of Indians", and Johnston, my lord,  8 as you may recall from Mr. Morrison's evidence, was to  9 figure prominently in subsequent diplomatic  10 negotiations with the Iroquois Confederacy.  11 On page 114.  The Treaty of Aix-la-Chapelle,  12 signed in Europe in October 1748 ended British/French  13 hostilities in North America and Europe.  It did not,  14 however, remove the cause of friction between the two  15 rival empires of France and Great Britain.  Although  16 the treaty suspended rather than ended the hostility  17 between French America and British America.  18 Other than the Acadian question, which is the  19 subject of the treaty, French and English interests in  20 the Ohio country, the westward lands beyond the  21 Alleghany Mountains, increasingly became the focus of  22 and military maneuvers.  There were powerful reasons  23 for both the French and the English focusing on the  24 Ohio country.  It was rich in furs, and for this  25 reason alone would have been worth winning.  However,  26 it's long-range strategic value extended far beyond  27 its economic significance to the fur trade.  28 Now, by 1748 French trading activities had  2 9 advanced under the St. Lawrence from Quebec and  30 Montreal to the shores of Lake Erie, via posts  31 constructed at Frontenac and Niagara.  From the Gulf  32 of Mexico they had penetrated up the Mississippi to  33 the mouth of the Ohio and beyond.  French forts dotted  34 the landscape stretching from Detroit to New Orleans.  35 This left the Ohio Valley region as the last remaining  36 link to connect the French northern strongholds at  37 Montreal to New Orleans.  If the Ohio fell into the  38 French sphere, New France would extend its influence  39 in a powerful and impenetrable arc from the mouth of  40 the St. Lawrence to the mouth of the Mississippi, and  41 the potential wealth and strategic superiority that  42 came with the control of the Ohio would belong to  43 France.  There was also an important military reason  44 for France -- for French designs on the Ohio.  Once  45 France completed a strong chain of military posts  46 through the Ohio, communication between New Orleans  47 and Montreal could not be severed by French sea power 23770  Submissions by Mr. Jackson  1 in times of war.  2 Now, at 116 I make the point, my lord, the Ohio  3 was also of critical importance to the British.  4 Springing from the original coastal settlements of the  5 17th century, the tide of colonial settlements  6 westward was at the crest of the Alleghany Mountains  7 by 1748.  Without the possibility of future expansion  8 into the Ohio, the British colonial efforts would be  9 discontinued to confine itself to the comparatively  10 narrow strip of land between the mountains and the  11 Atlantic.  12 And if the French and the English had designs on  13 the Ohio, the old controvertible fact was that the  14 Ohio was Indian country, was controlled by several  15 important powerful Indian nations, and any European  16 occupation of the area depended upon obtaining the  17 consent of these powerful nations.  Now, both France  18 and England in diplomatic exchanges maintained that  19 they had territorial rights over the Ohio.  The French  20 were more straightforward.  They simply asserted a  21 title based on first discovery in the form of  22 explorations of Chevalier de la Salle in 1679.  23 Britain's claims were of a different order.  Their  24 claims rested in part on the sea to sea provisions  25 contained in the Royal Charters given to Virginia and  26 Pennsylvania, but more importantly for the purposes of  27 our argument, they asserted sovereignty over the area  28 by virtue of the Crown's relationship with the  29 Iroquois.  The English claim to the Ohio can be  30 characterized as a syllogism.  And it proceeded along  31 these lines.  By Article XV of the Treaty of Utrecht  32 of 1713, France had agreed to recognize the Iroquois  33 as subjects of the British Crown.  The Iroquois had  34 conquered the interior nations inhabiting Ohio, and  35 these nations were now Iroquois tributaries, and  36 Iroquois claimed their territories by right of  37 conquest.  Relying upon the French acknowledgement  38 that the Iroquois were the subjects of the British  39 Crown, and the Iroquois own acknowledgement of  40 subjects contained in documents such as the 1701 and  41 1726 cessions, the British claimed sovereignty over  42 all of the Iroquois lands.  43 In other words, they claimed a derivative title  44 through the Iroquois own title.  45 Now, the point of the matter, my lord, in that  46 middle paragraph of 117 says it is that whatever the  47 diplomatic assertions as between each other, neither 23771  Submissions by Mr. Jackson  1 the French nor the British asserted sovereignty over  2 the area to the face of the Iroquois.  These were, as  3 it were, diplomatic exchanges which were taken with as  4 much seriousness in the 18th century as in the 17th,  5 so far as the Iroquois were concerned.  But France  6 initiated more than a diplomatic strategy to make its  7 claims in the Ohio when it sent a military expedition  8 under Captain Celoron down the Alleghany and Ohio  9 Rivers intended to renew ancient French ties with the  10 tribes inhabiting the Ohio country.  During the spring  11 and summer of 1749 Celloron engaged in a number of  12 "ceremonies of possession" burying inscribed lead  13 plates to commemorate the removal of French claims.  14 I imagine that's the diplomatic equivalent of  15 writing on trees that have been there with some rather  16 greater formality.  17 For their part the English colonies were not  18 prepared to stand idly by and abandon the Ohio  19 territory to the French.  And in 1748 they sent a  20 emissary into the Ohio to negotiate a formal trade  21 alliance between Pennsylvania traders and the Ohio  22 tribes.  In other words, the British engaged in treaty  23 making to perfect and enhance their legal entitlements  24 in the area.  The province responded positively later  25 that year when representatives of the Six Nations came  26 to Lancaster with a delegation of Indians from the  27 Twightwee Nation, also known as the Miamis, and  28 recommended that the Twightwees be accepted into a  29 formal alliance with Pennsylvania, thereby extending  30 the Covenant Chain.  31 And one of the significant things about the Treaty  32 of Lancaster, apart from illustrating my point, the  33 British where they sought to expand their territorial  34 trade interests into an area, sought to do so through  35 treaty making with the Indians.  The treaty is also of  36 significance in that it clearly demonstrates the  37 extent to which European and Indian treaty procedures  38 were combined, thus the petition by the Twightees to  39 be admitted into the Covenant Chain was accompanied on  40 behalf of that nation by the presentation of a calumet  41 pipe, with a long stem wrapped around with wampum of  42 several colours and filled with tobacco.  In accepting  43 the Twightees as allies of the English, Pennsylvania  44 commissioners smoked the pipe in accordance with the  45 Indian tradition.  46 And, my lord, when I deal, as I will later this  47 week or next week with the various treaties which were 23772  Submissions by Mr. Jackson  1 made in Canada in the 19th century, we will see that a  2 similar recognition by British Canadian treaty  3 commissioners of the appropriate Indian protocol was  4 accepted as part of treaty negotiations.  For their  5 part the British then acquainted the Twightees with  6 the customs of making the alliance binding.  7  8 "We understand that by an ancient custom  9 observed by your ancestors, the delivery and  10 acceptance of the calumet pipe are the  11 ceremonies which render valid and bind fast  12 your alliances; we must tell you what our  13 usages are on these occasion.  The English when  14 they consent to take any nation into their  15 alliance, draw up a compact in writing, which  16 is faithfully interpreted to the contracting  17 parties and when maturely considered and  18 clearly and fully understood by each side,  19 their assent is declared in the most public  20 manner and the stipulation rendered authentic  21 by sealing the instrument with seals whereupon  22 are engraven their families' arms, writing  23 their names and publishing it as their act and  24 deed, done without force or constraint, freely  25 and voluntarily.  This is the English method of  26 ratifying treaties."  27  28 And so, my lord, we see there the conjunction or  29 combination of British and Indian diplomatic in treaty  30 making.  31 Turn now to page 120, my lord, for another example  32 of treaty making.  Pennysylvania's initiative with the  33 Ohio tribes and a further purchase of Indian lands  34 from the Six Nations on the east side of the  35 Susquahannah, north of the Blue Mountains,  36 precipitated a competing initiative from Virginia.  37 Now, that province had taken a very generous  38 interpretation of the lands ceded by the Six Nations  39 to Virginia by the Treaty of Lancaster in 1744.  40 Virginia took the position that this cession had given  41 the colony jurisdiction over all the territories  42 between the Alleghanys and the east bank of the Ohio  43 River.  This interpretation was challenged by the Six  44 Nations, who viewed the cession as a much more limited  45 one, the western boundary of which was far to the east  46 of the Ohio.  In late 1748 a group of prominent  47 Virginia businessmen formed the Ohio company in order 23773  Submissions by Mr. Jackson  1 to pursue actively Virginian land claims to the  2 western territory, and pursuant to a charter, it  3 received a grant of some 200,000 acres located at the  4 forks of the Ohio River.  5 And in London the government saw the activities of  6 the Ohio company as something to be looked on with  7 approval, as being a weapon to be used against the  8 French, since the proposals of the Ohio company  9 included establishments of English settlements in the  10 Ohio country and the construction of the trading post  11 or fort at the forks of the Ohio River.  However, as  12 was the case in the prairies, in the 1870's in Canada,  13 reconaissance surveys, when they entered into the Ohio  14 in the 1740s, were not well received by the Indians.  15 And it became clear to Virginia colonial authorities,  16 as it became to British authorities in Canada in the  17 19th century, that any expansion of Virginia colonial  18 interests into the Ohio was dependent upon  19 clarification of the status of the territorial  20 arrangements of the Lancaster Treaty of 1744.  21 Accordingly another treaty was convened at Logstown in  22 1752 with representatives of the Delawares, the  23 Shawnees and other western allies of the Six Nations.  24 One of the leading Indian negotiators at this  25 treaty was Thonorisan, an Oneida, serving as a  26 representative of the Six Nations, and at the  27 negotiations Virginia representatives emphasized the  28 benefits to the Ohio Indians of Virginia expansion  29 into the area, principally in the form of increased  30 trade and a greater supply of goods at cheaper prices.  31 The Indian representatives expressed again their  32 understanding of the extent of the Lancaster cessions,  33 but agreed to confirm the territorial cession of 1744  34 for lands south and east of the Ohio River, subject to  35 final approval by the Onondaga council.  They also  36 acquiesced in the building of a fort at the forks of  37 the Ohio, and in the establishment of an English  38 settlement, and promised that any such settlement or  39 settlements would not be molested, and that they  40 would, as far as in our power, assist and protect the  41 British subjects there inhabiting.  42 My lord, in reciting this, it is important to  43 understand the nature of the process at Logstown.  And  44 I have set that out at the bottom of page 122.  45 The Ohio company had received a grant of land from  46 Virginia to which the colony claimed legal title by  47 virtue of a previous Indian cession.  There was 23774  Submissions by Mr. Jackson  1 ambiguity as to the proper interpretation of that  2 cession in terms of the extent of land ceded.  Before  3 proceeding to build a fort and establish settlement  4 within the disputed area, a further treaty was  5 organized, and the consent of the Indian claimants of  6 the territory was obtained.  An agreed interpretation  7 of the treaty was ratified by both parties, and Indian  8 consent was given to the proposed settlement and  9 construction.  As we will seek to demonstrate, my  10 lord, this conforms precisely to the legal pattern of  11 settlement and development in Canadian territories in  12 the post-Proclamation period.  13 Now, attempts to strengthen the Covenant Chain  14 made by Pennsylvania and Virginia during this period,  15 particularly in relation to the western allies of the  16 Iroquois, was not matched with equal solicitousness by  17 New York for the interests of what constituted the  18 core of the Covenant Chain, the Six Nations  19 themselves.  20 Dr. Jack Stagg, my lord, a scholar who has written  21 extensively and produced a doctorate on this period,  22 looking at the relationships between the British  23 authorities and the Indians in the period leading up  24 to the Royal Proclamation, has documented how from the  25 end of the Franco-English war in 1748 relations  26 between New York and the Iroquois were on a  27 particularly delicate footing.  28 And at the bottom of the page, my lord, William  29 Johnson himself, frustrated over New York's  30 indifference to Indian interests and the lack of  31 financial support necessary to maintain their  32 friendship, resigned his position as provincial agent  33 of Indian Affairs, indicating that only if he were to  34 receive a Royal Commission, backed by the treasury of  35 England, would he be prepared to continue and perform  36 the delicate business of managing Indian Affairs.  37 Now, again at 124 French threats to the Ohio  38 lands, persistent reports of flagging interest among  39 the Iroquois in supporting British  40 political-commercial endeavors on the New York  41 frontier, and finally Johnston's resignation combined  42 to lend a sense of urgency to problems associated with  43 English-Indian relations in 1751.  Governor Clinton of  44 New York elected to call a conference between colonial  45 officials of all the British provinces and the Six  46 Nations at Albany.  And this conference drew  47 representatives from New York, Massachusetts, 23775  Submissions by Mr. Jackson  1 Connecticut, Pennysylvania and South Carolina,  2 however, failed to produce any coordinated policy.  3 Over to page 125, my lord.  In the following year,  4 1752, the French provided substance to the threat  5 which the British colonies actually faced by French  6 expansion into the Ohio.  The same day as the Logstown  7 conference in Pennsylvania was breaking up, a large  8 party of French soldiers and their Indian allies  9 attacked a small British trade post at Pickawillamy.  10 Because that post had great symoblic value as the  11 centre of British strength and influence closest to  12 the French sphere in the west, its fall dealt a severe  13 blow, not only to British trading interests, but also  14 to general British prestige among the western tribes.  15 Page 126.  The Pickawillamy defeat provides the  16 western tribes with tangible evidence of British  17 weakness and French power.  18 The following year in 1753, and this is a  19 significant year, the French followed up their victory  20 by sending a large military expedition of some 1,500  21 warriors and soldiers into the Ohio.  The Iroquois,  22 alarmed at the French seizure of Pickawillamy and the  23 total lack of any effective British response to the  24 French threat, reassessed their loyalties.  The  25 Onondagas, Cayugas and Sececas, whose ties of loyalty  26 to the British had been weakest, went over to the  27 French in large numbers.  William Johnston informed  28 Governor Clinton of the Iroquois reaction, and  29 volunteered to assist the governor in calling an  30 emergency Indian conference in the early summer of  31 1753.  32 And this was a critical conference, my lord.  33 The governor and the entire New York council met  34 with the Six Nations' delegation at Fort George within  35 the New York City limits.  The Mohawk leader,  36 Hendrick, left little doubt as to how far British  37 Iroquois relations deteriorated when he gave the  38 opening address.  He said:  39  4 0 "We are come to remind you of the ancient  41 alliance agreed on between our respective  42 forefather's:  we were united by a Covenant  43 Chain and it seems now likely to be broken, not  44 from our faults but yours...1 say the  45 indifference and neglect shown towards us makes  46 our hearts ache, and if you don't alter your  47 behaviour to us we fear the Covenant Chain will 23776  Submissions by Mr. Jackson  1 be broken."  2  3 And Hendrick went on to document the indifference  4 and neglect shown towards the Confederacy by the New  5 York assembly.  6 And further down on that paragraph on page 127 I  7 identify the grievances.  And those grievances to  8 which Hendrick referred related principally to  9 unlawful encroachments by white settlers and surveyors  10 on Iroquois lands.  Hendrick gave half a dozen  11 examples of abuse of the land cession processes which  12 had been mutually agreed upon between the Six Nations  13 and New York, whereby patents were being issued to  14 lands not officially surrendered or sold by the  15 Mohawks.  As he said:  16  17 "As to what we have sold we are well satisfied  18 therewith and sensible, but it grieves us to  19 have more land taken up than we have agreed to  20 sell."  21  22 Now, Governor Clinton's response was woefully  23 inadequate.  While he pledged to reaffirm the Covenant  24 Chain, he could suggest only another conference to  25 deal with an airing of the issues.  As to specific  26 Mohawk complaints, he argued that most of the lands in  27 question had been patented long before his arrival in  28 New York, but he was prepared to have the Board of  29 Commissioners for Indian Affairs in Albany examine  30 each case individually.  Hendricks was incensed at  31 Clinton's attempt to evade what the chief saw as the  32 crucial issues separating the Six Nations and New  33 York.  He told the assembled delegates:  34  35 "When we came here to relate our grievances  36 about our lands, we expected to have something  37 done for us... And rather you tell us that we  38 shall be redressed at Albany, but we know them  39 so well, we will not trust them, for they are  40 no people but devils, so we rather that you'll  41 say nothing shall be done for us."  42  43 Hendricks then delivered a stunning blow to  44 Anglo-Iroquois relations.  "As soon as we come home",  45 the chief told the conference, "we will send up a belt  46 of wampum to our brothers the Five Nations to acquaint  47 them the Covenant Chain is broken between you and us." 23777  Submissions by Mr. Jackson  1 Hendricks solemnly concluded his address, stating:  2 "You are not to expect to hear from me anymore, and  3 brother we desire to hear no more of you."  4 The Six Nations, my lord, had journeyed to New  5 York with the hope of receiving a firm commitment of  6 assistance for the protection of their lands and  7 security against the French advance.  And the failure  8 of New York to provide an adequate defence to Iroquois  9 trade lands and homes had resulted in the breaking of  10 the Covenant Chain.  11 And that is a break, my lord, in the argument to  12 the extent that we are now -- we have now come to the  13 point where we are at a critical juncture in  14 relationships between the English and the French  15 linchpin, as it were, of the English alliance, the  16 Iroquois, have served notice that henceforth they are  17 not with the British.  And the next section of the  18 argument --  19 THE COURT:  Well, can you tell me what was the date of the —  20 MR. JACKSON:  That was 1753, my lord.  21 THE COURT:  That was 1753?  22 MR. JACKSON:  1753.  23 THE COURT:  Yes.  All right.  Thank you.  24 MR. JACKSON:  And the next section, my lord, which starts at  25 page 130, tracts the period from 1753 to 1763.  And  26 deals with the ways in which Imperial British  27 imprimatur was placed upon the conduct of Indian  28 affairs in North America.  Hence the heading "The  29 Imperial Affirmation of Aboriginal Rights, 1753-1763".  30 And it is the plaintiffs' submission, my lord,  31 that an understanding of this period, indeed an  32 understanding of the period even before, but  33 particularly this period, is essential to determining  34 the mischief to which the Royal Proclamation of 1763  35 was directed, and in light of which its terms must be  36 interpreted.  37 Mr. Rush will tomorrow be addressing, my lordship,  38 specifically on the provisions of the Royal  39 Proclamation and the appropriate legal canons of  40 construction which we will urge upon Your Lordship in  41 its interpretation.  42 In this section what I seek to do is set out the  43 historical context for Your Lordship to address that  44 mischief.  45 And we say, my lord, that the maintenance of the  46 Covenant Chain with the Six Nations and their allies  47 became of critical importance to the British in the 2377?  Submissions by Mr. Jackson  1 continuing hostilities with France in the 1750s and  2 1760s.  The Six Nations made clear that the  3 pre-condition for maintaining that alliance with the  4 British colonies was recognition of their territorial  5 rights and the redress of frauds and abuses by  6 colonial land speculators.  It was this mischief and  7 the inability of the colonial authorities to properly  8 address these vital Indian concerns relating to their  9 land rights that led, in 1753, to the imperial  10 authorities in London taking charge of Indian policy  11 and placing imperial imprimatur on the affirmation and  12 enforcement of Indian rights to their territories.  13 It is our submission that in the formulation of  14 that policy and in its ultimate expression in the  15 Royal Proclamation of 1763, the imperial authorities  16 endorsed and consolidated the fundamental principles  17 of the common law governing Indian-Crown relationships  18 which had been articulated and agreed upon in the  19 Covenant Chain treaties, and compacts and in the  20 imperial measures directed to their maintenance.  21 The following review of the pre-Proclamation  22 history demonstrates in our view, my lord, how Indian  23 insistence on and British acknowledgement of the  24 principles that Indian Nations' rights to their  25 territories be respected and protected, and that there  26 be no change in territorial arrangements without  27 Indian consent was fundamental to the survival and  28 expansion of British interests in North America.  And  29 we say, my lord, these principles are not transient  30 notions confined in space and geography, but form part  31 of the bedrock of Canadian history and nationhood, a  32 point of which I will expand later this afternoon.  33 The first part of this history, my lord, takes us  34 from the Congress of Albany to the Conference of  35 Easton.  And the New York conference of June 1753,  36 which Covenant Chain had been broken, represented the  37 last colonial sponsored initiative to settle issues  38 affecting Iroquois-British relations.  39 And the bottom of the page, my lord, it was at  40 this critical juncture, as the threat of a rupture  41 between France and England throughout the west grew  42 more imminent each day, and with a threatened break of  43 the Covenant Chain by Iroquois, that the authorities  44 in London sought to lend imperial imprimatur to the  45 resolution of these matters.  46 And turning to page 133, my lord.  It was shortly  47 after the dispatch of a circular letter to all British 23779  Submissions by Mr. Jackson  1 North American provinces informing them of the  2 determination to resist further French advancement in  3 North America, that Governor Clinton informed London  4 of what had happened at the Fort George conference in  5 1753.  The prospect of the complete break in British  6 relations with the Six Nations' confederacy now became  7 evident to Imperial officials.  The Board of Trade  8 responded immediately by directing the newly appointed  9 Governor of New York, Sir Danvers Osborn, to convene a  10 conference with the Six Nations, with commissioners  11 appointed from the other neighbouring governments  12 whose security interests depended upon and were  13 connected with them.  14 The top of page 134, my lord.  15 In their instructions, the Board of Trade affirmed  16 the "great importance" of preserving "the friendship  17 and affection of the Indians and the fatal  18 consequences which must inevitably follow from a  19 neglect of them", and furthermore the Board of Trade  20 directed the New York Governor:  21  22 "To examine into the complaints (the Indians)  23 have made of being defrauded of their lands, to  24 take all proper and legal methods to redress  25 their complaints, and to gratify them by  26 reasonable purchases, or in such other manner,  27 as you shall find most proper and agreeable to  28 them, for such lands as have been unwarrantably  29 taken from them, and for such others as they  30 may have a desire to dispose of."  31  32 And this, we emphasize, my lord.  33  34 "We recommend it to you to be particularly  35 careful for the future that you do not make  36 grants to any persons whatsoever of lands  37 purchased by them of the Indians upon their own  38 accounts,... but when the Indians are disposed  39 to sell any of their lands, the purchase might  40 be made in His Majesty's names and at the  41 public charge."  42  43 And the Albany conference convened on June the  44 19th, 1754.  In attendance at that conference were  45 representatives, as Your Lordship can see from New  46 York, Maryland, Pennsylvania, Massachusetts,  47 Connecticut, New Hampshire and Rhode Island.  Only 23780  Submissions by Mr. Jackson  1 Virginia and Carolinas did not send delegates.  The  2 opening speech at this conference, My Lord, page 135,  3 was delivered by the new governor of New York,  4 Governor de Lancey, and he pointed out how French  5 activities on the Ohio threatened this territory, and  6 asked whether the French military buildup in the Ohio  7 was done with the Indians' consent.  Chief Hendrick  8 was again the spokesman for the Six Nations,  9 vigorously denied that the Iroquois had consented to  10 the building of French forts in the territory, and  11 pointed out that the Iroquois saw the greatest threat  12 coming not merely from French occupation of the Ohio  13 lands, but rather from both France and England, who  14 both seemed determined to take territory which  15 belonged to neither.  As Chief Hendrick's said:  16  17 "The Governor of Virginia and the Governor of  18 Canada are both quarreling about lands which  19 belong to us, and such a quarrel as this may  20 end in our destruction.  The Governors of  21 Virginia and Pennsylvania have made paths  22 through our country to trade and build houses  23 without acquainting us with it, and I think  24 should first have asked our consent to build  25 there, as was done when Oswego was built."  26  27 At page 136, the bottom half of the page, my lord,  28 a written reply to Hendrick's speech was prepared by  29 the commissioners and delivered by de Lancey.  And it  30 contains a legal characterization of the effects of  31 the Iroquois having placed their lands under the  32 King's protection.  33 Remember, my lord, these were the deeds we  34 referred to before as the Iroquois deeds.  35 Governor de Lancey said:  36  37 "You did put this land under the King our  38 Father, he is now taking care to preserve it  39 for you, for this end, among others, he has  40 directed us to meet you here, for although, the  41 land is under the King's government, yet the  42 property or power of selling it to any of His  43 Majesty's subjects having authority from him,  44 we always consider as vested in you."  45  46 Now, my lord, de Lancey did not enlarge upon what  47 was meant by the land being under the King's 23781  Submissions by Mr. Jackson  1 government, but it is submitted that this -- the  2 vision of the Crown title and Indian title reflects  3 the analysis which Dr. Hurley has placed upon these  4 documents, which I apprised Your Lordship of before,  5 and what the colonial representatives clearly  6 understood was that the full beneficial ownership,  7 encompassing the right to use and alienate the  8 territory, lay with the Six Nations.  9 Later in the page, my lord, at the bottom you will  10 see that Chief Hendrick, in his reply for the Six  11 Nations, expressed the Confederacy's thanks for the  12 colonial "promise of protection given us, of our lands  13 and the acknowledgement that the right of selling it  14 is in us."  And on that basis, my lord, the Six  15 Nations therefore were prepared to renew the Covenant  16 Chain to defend common interests against the  17 incursions of the French.  18 During this conference, my lord, a number of  19 Indian spokesmen addressed the importance of mutually  20 acceptable fair procedures for the acquisition of  21 land.  Canadagara, a Mohawk chief, in introducing the  22 subject of land grievances stated:  23  24 "We told you a little while ago, that we had an  25 uneasiness on our minds, and we shall now tell  26 you what it is.  It is concerning our land...  27 We don't complain of those who have honestly  28 bought land they possess or those to whom we  2 9 have given any, but some have taken more than  30 we have given them."  31  32 A familiar refrain, my lord, throughout this  33 period.  34 At the close of the Congress, a joint  35 representation to the British government was drawn up  36 and endorsed by the colonial delegates.  And this  37 representation, my lord, approved the statutory  38 provisions which appeared in most of the colonies of  39 voiding private purchases of lands.  And as to land  40 speculating companies, who were among the worst  41 offenders in the unlawful taking of Indian lands, the  42 commissioners recommended that in future all lands to  43 be patented, whether by a company or otherwise, should  44 be purchased only through the government of the colony  45 wherein such lands were located, and furthermore that  46 these Crown purchases be made only from the Indians as  47 a body at their public councils.  These 23782  Submissions by Mr. Jackson  1 recommendations which sought to directly address  2 Indian concerns as to their territorial integrity  3 reflect the general shape of the provisions of the  4 Royal Proclamation itself.  5 So you can see, my lord, how through Covenant  6 Chain negotiations block by block the contours of the  7 Royal Proclamation are built up through mutually  8 agreeable arrangements.  9 On page 139, my lord, there was one other matter  10 of some consequence which was addressed by the  11 commissioners.  And this is something which my  12 colleague Mr. Rush will take up again.  13 The commissioners recommended that the bounds of  14 those colonies which had sea to sea clauses, that is  15 from the Atlantic to the Pacific, be contracted and  16 limited by the Alleghany Mountains.  And Dr. Stagg  17 points out that the commissioners recognized the  18 confusion, misunderstandings and conflicts which had  19 arisen from the actions of several colonies in putting  20 forward unsubstantiated claims to westward lands.  The  21 clarification which followed the suggested limiting of  22 colonial boundaries, however, demonstrated that in  23 future British settlements should not be necessarily  24 confined to the east of the Allegheny line.  The  25 conference agreed that measures be taken from settling  26 from time to time, colonies of His Majesty's  27 protestant subjects, westward of said mountains in  28 convenient cantons to be assigned for that purpose.  29 In view of other recommendations concerning Indian  30 lands, this clearly could only be done through an  31 orderly and regulated pattern of land purchase.  And  32 Benjamin Franklin, one of the Pennysylvania delegates,  33 suggested that the most practical method of settling  34 these territories would be the development of new  35 communities in conjunction with the desires of the  36 Indian occupants beyond the mountains.  37 My lord, this is of relevance to the so-called  38 mercantilist argument that those who drafted the Royal  39 Proclamation had no intention and did not envisage any  40 settlements west of the Allegheny.  As I say, my  41 colleague Mr. Rush will be addressing himself to that  42 point.  43 Not only does the congress of Albany have  44 relevance to that point, the recommendations also shed  45 light on the proper interpretation of the phrase used  46 in the Proclamation of 1763 "until our further  47 pleasure be known". 23783  Submissions by Mr. Jackson  1 And you will see, my lord, that it is our broad  2 submission that this phrase characterizes the nature  3 of the western boundary of the colonies, and  4 contemplates, as did the commissioners at Albany, that  5 this boundary could be extended westward infinitely --  6 indefinitely.  7 Lord Watson, in the St. Catherine's case, and most  8 recently Mr. Justice Steel in the Bear Island case, in  9 suggesting that the phrase characterizes the nature of  10 Indian title and contemplates its continued existence  11 "at the pleasure of the Sovereign", which as we  12 understand is the province's position, in our  13 submission misapprehended the intent of the  14 Proclamation.  And it is our further submission that  15 as part of the evidentiary support for that, not only  16 would Your Lordship have regard to our analysis of the  17 Proclamation, but also the deliberations at Albany in  18 1754 have relevance to that issue.  19 At page 141.  When the report of the Albany  20 Congress arrived in England, the Board of Trade,  21 having considered the report, recommended that Indian  22 Affairs must henceforth be under one "general  23 administration" directed to the "general interest".  24 Indian relations or at least Indian military relations  25 were to be under the sole superintendency of William  26 Johnson.  And the Imperial instructions given to  27 William Johnson and his diplomatic correspondence with  28 London and his diplomatic exchanges with the Iroquois  29 themselves constitute, my lord, a primary source for  30 identifying the nature of Indian legal interests in  31 land, and the importance of their recognition and  32 protection by the Crown.  33 Now, pursuant to his Imperial instructions, in  34 1755 Johnson convened a major conference at Mount  35 Johnson at which more than one thousand Indians from  36 five different nations attended.  And the purpose of  37 that conference, my lord, was to secure Iroquois and  38 their allies military support in the campaigns against  39 the French.  40 And at the bottom of page 141, top of page 142, my  41 lord, and I am not going to go through it with you,  42 but you will see that William Johnson in addressing  43 the assembled Indian people there characterized the  44 nature of Covenant Chain.  And if Your Lordship reads  45 that, you will see that it is a characterization which  46 mirrors that of Chief Canassatego at the conference of  47 Lancaster in 1744. 23784  Submissions by Mr. Jackson  1 At page 143.  2 Indian response to the British request for  3 military assistance was favourable, but the Six  4 Nations made it clear that their military assistance  5 was conditional on British acceptance of a moratorium  6 on the sale of any more Indian lands and a return of  7 two tracts already alienated from the tribes.  Both  8 tracts were the subject of deeds signed  9 contemporaneously with the 1754 Albany conference.  10 I don't know whether this would be a convenient point  11 to break, my lord.  12 THE COURT:  As it is for you, yes, that's fine.  13 THE REGISTRAR:  Order in court.  This court stands adjourned for  14 a short recess.  15  16 (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS)  17  18 I HEREBY CERTIFY THE FOREGOING TO BE  19 A TRUE AND ACCURATE TRANSCRIPT OF THE  2 0 PROCEEDINGS HEREIN TO THE BEST OF MY  21 SKILL AND ABILITY.  22  2 3    2 4 LORI OXLEY  25 OFFICIAL REPORTER.  2 6 UNITED REPORTING SERVICE LTD.  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 23785  Submissions by Mr. Jackson  1 THE COURT:  Mr. Jackson, can you tell me, I don't have them with  2 me at the moment, but does your submission from which  3 you have been reading track the documents that were  4 described by Mr. Morrison?  5 MR. JACKSON:  Yes, my lord.  6 THE COURT:  Thank you.  7 MR. JACKSON: I should say, my lord, that Mr. Morrison's  8 documents are supplemented in this regard by  9 references to Dr. Stagg's treatise.  10 THE COURT:  All right.  11 MR. JACKSON: And I think that — they are also supplemented by  12 the documents which were added by us to complete a  13 bundle of documents which were part of Mr. Morrison's  14 original documents which were filed in reply.  15 THE COURT:  All right.  16 MR. JACKSON: My lord, I should advise you that I had intended to  17 reach a certain point by tonight, and it was in  18 relation to that situation yesterday that we asked for  19 the extended hours today.  Subject to your lordship's  20 wishes, when I reach that point, it would be a  21 convenient place to take the break.  I don't envisage  22 doing that before four, but it may be close, either  23 side of 4 o'clock.  And we are then back on schedule.  2 4 THE COURT:  Thank you.  25 MR. JACKSON: Before the break, my lord, we were at 143, and I  26 had just made mention of the fact that the Indian  27 response to British request for military assistance  28 was conditioned upon a moratorium of a sale on any  29 more lands and a return of two tracts of lands which  30 were the subject of deeds that had been signed at the  31 time of the 1754 Albany conference.  And these deeds  32 figured mightily in discussions which ensued  33 thereafter.  34 The first deed was one made by the Six Nations in  35 the Pennsylvania proprietary and related to all the  36 lands in the province west of the Susquahanna River  37 and at the Treaty of Albany, in meetings between the  38 Six Nations and Pennsylvania, the Pennsylvania --  39 Chief Hendrick at that point had argued that the  40 cession should not extend further west than the  41 Alleghany Mountains and the Pennysylvanians responded  42 that the Iroquois were intending to retain lands west  43 of Susquahanna in order to sell them to the French.  44 After the deliberations the Six Nations, west of the  45 Susquahanna, to demonstrate that they had no such  46 ulterior purpose.  And Hendricks made that clear, my  47 lord, on the statement at page 144. 23786  Submissions by Mr. Jackson  1  2 "This will convince the world and you that we  3 have no connection with Onontio..."  4  5 Which was the Iroquois reference to the  6 governor of Canada,  7  8 "...since those lands from this time will  9 belong by our title to King George and to Onus.  10                     Make out your deed and be not long about it."  11  12 At the bottom of the page, my lord, Hendrick in  13 agreeing to cede the lands west of the Susquahanna,  14 conditioned that cession by stating that:  15  16 "As to Wyomink and Shomoken and the land  17 continguous thereto on Susquahanna, we reserve  18 them for our hunting ground, and for the  19 residence of such as in this time of war shall  2 0 remove from among the French and choose to live  21 there."  22  23 My lord, I emphasize the words "we reserve them for  24 our hunting ground".  This language is significant  25 because again it pre-figures the language used in the  26 Proclamation of 1753 but it is, in this particular  27 context, not language which emanates from the goodwill  28 of the sovereign, it's language which emanates from  29 one the principal Iroquois chiefs and spokesman in  30 relationships with the British.  31 At the bottom of page 145, my lord, in another deed  32 referred to by the Six Nations at the Mount Johnson  33 conference also related to the Susquehanna lands.  And  34 in spite of Hendrick's announcement in the Six Nations  35 meeting with Pennsylvania that the Wyoming lands were  36 not for sale, Joseph Lydius, acting for a group of  37 Connecticut land speculators, who were operating under  38 the name Susquahanna Company, obtained the signatures  39 of important Six Nations chiefs to a deed for a large  40 tract of land encompassing the very Wyoming Valley,  41 which Hendrick has said "we reserve these for our  42 hunting grounds."  It appears from contempory  43 accounts, my lord, reported by Dr. Stagg, that after  44 the conclusion of the meeting with Pennsylvania these  45 chiefs had been invited by Lydius to share some  46 hospitality, they had been made drunk and Lydius then  47 obtained their signatures to the fraudulent deed. 23787  Submissions by Mr. Jackson  1 Hendrick, previous to the conference, had raised the  2 issue of the Lydius deed with the Governor of  3 Pennsylvania and had argued that the deed should be  4 annulled.  And at Mount Johnson Hendrick reiterated  5 that this land had in fact been stolen from the  6 Iroquois, and they would never ratify the transaction  7 nor allow settlement on these lands.  8 William Johnson, for his part in replying to the  9 Iroquois complaints, voiced his agreement that the  10 Lydius deed had been secured under dubious  11 circumstances and assured Hendrick that nobody would  12 attempt to settle lands upon such unfair purchases.  13 However, my lord, with respect to the purchase made by  14 the Pennsylvania Proprietory for the lands west of the  15 Susquehanna, Johnson had this to say, and these  16 statements I think speak loudly of the process  17 involved in the acquisition of Indian lands in the  18 18th century:  19  20 "As to those was done in a fair and  21 open manner with the consent of your whole body  22 then present, and I believe most of you are  23 sachems now here did agree to and were present  24 at that bargain, and tho' you then received but  25 half the purchase money, you were told, you  26 might have the other half whenever you would  27 call for it with which you were satisfied; for  28 you therefore to want to recall half of that  29 purchase the whole of which you have given a  30 deed in so public and so solemn a manner, is it  31 my opinion unreasonable and unjust?  If you  32 expect justice to be done you, you ought to be  33 ready to do justice yourselves."  34  35 My lord, this is something which I will come back  36 to, the late motif of justice and reciprocal justice  37 as between the Iroquois and the English, is a hallmark  38 of these negotiations.  39 Page 147.  While preparations were being made for a  40 concerted British-Indian assault on French strongholds  41 in North America, negotiations for a peaceful  42 settlement of the issues which separated France and  43 Britain continued in Europe.  In seeking resolution of  44 these issues, one of the principal proposals that  45 emerged - the recognition of an independent Indian  46 territory - was to form a central feature of Imperial  47 policy in the Proclamation of 1763.  This proposal, my 237?  Submissions by Mr. Jackson  1 lord,  as initiated by the French, called for the  2 evacuation of the Ohio country by both French and  3 English interests and a complete demolition of all  4 forts and settlements within the territory creating,  5 in effect, an Indian buffer state between English and  6 French territory.  7 At the bottom of the page, my lord, the French in  8 responding to this proposal indicated a willingness to  9 vacate all lands between the Alleghanies and the Ohio  10 but insisted on maintaining control of the region  11 region between the Ohio River and the Wabash.  And on  12 this point, apparently the French were adamant and on  13 that point, negotiations broke down.  But as Dr. Stagg  14 points out, my lord, a basic knowledge of the British  15 position in 1755 is of some importance to a full  16 understanding of future British policy for lands  17 beyond the Alleghany divide.  This again speaks to the  18 issue of mercantilism.  The negotiations with the  19 French during 1754 and 1755, helped establish the  20 basic concept of a regulated western frontier for the  21 British American seaboard colonies.  Again, something  22 which is a hallmark of the Proclamation scheme.  23 At the bottom of the page, my lord, because a  24 similar more restrictive measure to halt western  25 settlement had already come from colonial  26 representatives in response to Indian demands,  27 government officials in London were assured that some  28 support for the concept of a regulated frontier  29 existed in North America, both amongst the colonial  30 authorities and the Indian nations themselves.  31 So, again, my lord, the idea of unilateral measures  32 by London does not do justice to the manner in which  33 the Proclamation's basic policies were in fact  34 formulated over a fairly long period of time.  35 At page 149:  In the spring of 1755, with  36 negotiations deadlocked between France and Britain,  37 events on the colonial frontiers pushed the two  38 nations closer to war.  In three confrontations with  39 the French much, the British suffered two humiliating  40 defeats and narrowly escaped a third.  What emerged,  41 my lord, from these early campaigns, and this is  42 something upon which Dr. Scaggs scholarship has been  43 directed, what emerged from these early campaigns was  44 the absolutely crucial role the Indians would play or  45 could play, in the final outcome of any inter-Imperial  46 struggle for control of North America.  And, my lord,  47 I have set out on page 149 and 150, several examples 23789  Submissions by Mr. Jackson  1 of the way in which the role of Iroquois military  2 assistance was of importance.  Perhaps the only one I  3 can refer you to is the one on page 149, where General  4 Braddock suffered one of the most humilating defeats  5 in English military history, when his force of 2500  6 soldiers was overwhelmed at the forks of the  7 Monongahela by a French force of some 300 soldiers  8 with 600 Indian warriors.  Stagg points out, "Braddock  9 and his army were doomed before a single shot was  10 fired" by virtue of the fact that the general's  11 conduct and demeanor towards his Indian allies,  12 particularly refusing to consult with the Indian  13 military leadership on battle strategy and specific  14 deployment of the Indian contingents, resulted in  15 their abandoning his campaign and even causing  16 defection to the French side.  There are some other  17 examples, as I say, on page 149 and 150.  18 Over to page 151, my lord, middle of the page, in  19 part because of the English defeat, and the lack of  20 favour in which General Shirley was viewed in London,  21 in February, 1756, Johnson, William Johnson was given  22 a new Imperial Commission, which made him accountable  23 only to Royal authority, naming him as colonel of our  24 faithful subjects and allies, the Six Nations of  25 Indians and their confederates in the northern parts  26 of North America.  27 At the bottom of the page you will note, my lord,  28 that Mr. Morrison in his evidence indicated that this  29 Imperial commission to William Johnson, is  30 acknowledged by the present Canadian Department of  31 Indian Affairs as the historical origins of the  32 department.  In other words, the department traces  33 it's roots of authority back to this Imperial grant to  34 Sir William Johnson in 1756.  35 At 152, one of William Johnson's first tasks after  36 his Royal commission was to intercede in hostilities  37 which had broken out on Pensylvania's western frontier  38 involving the Delawares and the Shawnees, coupled with  39 the circulation of rumours that these western nations  40 had begun negotiations with several powerful southern  41 tribes for the purposes of uniting in a general war  42 against the British.  And hostilities can be traced to  43 a number of sources not the least of which was the  44 Lydius land fraud during the Albany conference of 1754  45 and the subsequent influx of Connecticut settlers in  46 the Indians' Wyoming lands.  The defeat of the British  47 on the Ohio in 1755 signalled for these western tribes 23790  Submissions by Mr. Jackson  1 the moment to protest what they viewed as illegal  2 dispossession of their land.  And Johnson's efforts to  3 work through the Six Nations by urging them to bring  4 pressure to bear on their Indian tributaries, was less  5 than successful, in part because the Delawares in  6 particular did not readily accept Iroquois hegemony  7 over them and disputed Iroquois assertions that they  8 had been conquered by the Six Nations.  9 At page 153, my lord, it was during this period  10 with William Johnson conducting what in effect was the  11 precursor of shuttle diplomacy, that King George II  12 formally declared war on France and began in North  13 America, the final countdown, which would be a full  14 seven years long and which would decide the question  15 of French or British acendency in North America.  16 And in the resolution of this matter, as in the  17 encounters leading up to it, issues of Indian alliance  18 and the necessity for the recognition of the lawful  19 rights of the Indians to their territory, were to play  20 a critical part.  21 At page 154, my lord, I note that Sir William  22 Johnson, in September of 1756, made his views known on  23 the importance of addressing the territorial rights of  24 the Six Nations in a lengthy report on Indian affairs  25 to the Lords of Trade.  That should be, my lord,  26 referring to conferences, conferences, as opposed to  27 preferring.  28 Referring to conferences held with the Six Nations  29 and particularly the Albany conference, he stated:  30  31 "The jelousies of the Indians with regard to  32 their lands, their tanaciousness upon that  33 article..."  34  35 as being particular things which the Imperial  36 authorities ought to be aware of.  And he also hinted  37 that pressure from the Imperial authorities was  38 necessary.  39 With regard to Pennsylvania, he suggested that the  40 colony relinquish the 1754 Albany deed of Delaware  41 lands on the Susquehanna, even though it was lawfully  42 purchased.  For both Iroquois and Delawares, Johnson  43 concluded that the most effective method of producing  44 tranquility, would be a volunteer and open surrender  45 of that deed of sale fixed with the Indians in the  46 best manner they can the bounds of their settlements  47 and make them guarantees to it. 23791  Submissions by Mr. Jackson  1 Now, at page 155, my lord, again I note that the  2 relationship between Indian foreign policy and the  3 recognition of their land rights, was made as clear as  4 it could possibly could you be in the negotiations  5 which took place between the Delawares and  6 Pennsylvania.  And at the first of a series of  7 conferences, my lord, which were held in eastern  8 Pennsylvania, in November of 1756, the Delaware chief,  9 Teedyuscung, in an address to the governor of  10 Pennsylvania condemned the provincial proprietors for  11 their involvement in past land purchases and declared  12 that fraudulent land dealings were at the root of  13 Indian hostility towards the British:  14  15  16 "Brother, the reason I strucke you you must  17 know, it is I think because the Kings of  18 England and France made warr with one another  19 for our lands, and both these nations  20 incroached upon our lands and coop'd us up as  21 if in a penn..."  22  23 Now, my lord, you will recall Mr. Rush's reference  24 to Mary Johnson's similar lament as to being cooped up  25 in a pen in terms of reserves.  The metaphor is one  26 which again has some considerable depth.  27 MR. GOLDIE:  I am glad my friend acknowledges it is a metaphor,  2 8 my lord.  2 9    MR. JACKSON:  30  31 "This very ground I stand on was our land and  32 inheritance; bargains are bargains and we stand  33 by them....but we think we should not be  34 ill-used on this account by those people who  35 now enjoy the fruit of our lands."  36  37  38 And, I take it, my lord, that is not intended as a  39 metaphor.  40 At page 156, at the top, my lord, the failure to  41 address the now oft-repeated complaints of the Indian  42 nations regarding unlawful encroachments on their  43 lands, coupled with the as yet unproven ability of the  44 British to protect them from French attack, led in  45 June of 1757 to what which William Johnson had dreaded  46 and feared, an official declaration of neutrality in  47 the British-French struggle, by three of the Six 23792  Submissions by Mr. Jackson  1 Nations: the Senecasl, Cayugas and the Onodagas.  2 The second paragraph, my lord, along with the  3 announcement of neutrality by half of the Iroquois  4 confederacy, 1757 also witnessed the maturation of  5 another long-standing problem which had already led to  6 hostilities, colonial encroachments on Indian lands  7 along the western frontiers of Pennsylvania.  And this  8 is developed, my lord, over on page 157, at a second  9 conference at Easton, at which Chief Teedyuscung  10 attended.  And in his speech, he set out the reason,  11 again, for the disaffection between his people and the  12 British:  13  14 "Now as we have met together face to face to  15 speak with great sincerity, I will endeavour to  16 lay everything plain before you, not to cover  17 one part but to lay everything before you that  18 you may see plainly in order that we may have  19 true satisfaction from one another.  And that  20 what may be proved to be our right and due, may  21 be established forever in a durable and lasting  22 peace.  I would desire also that you would look  23 with all diligence and see from whence our  24 differences have sprung.  If I can now prevail  25 with you, as I you hope I shall, honestly to do  26 what may be consistent with justice, then I  27 will with a loud voice speak and the nations  28 shall hear me."  29  30  31 And what Chief Teedyuscung is referring to there,  32 my lord, if the British will do justice to the  33 Iroquois and the Delawares in terms of their land  34 rights, they will do justice to the British in terms  35 of renewing alliances in relationship to the French.  36 Teedyuscung continues:  37  38  39 "The land is the cause of our difference.  That  40 is our being unhappily turned out of the land  41 is the cause.  And tho the first settlers might  42 purchase the lands fairly yet they did not act  43 well nor do the Indians justice for they ought  44 to havereserved some place for the indians: had  45 that been done these differences would not have  4 6 happened."  47 23793  Submissions by Mr. Jackson  1 Page 158.  During several days of this conference,  2 my lord, and you will see that the conference  3 proceedings are an exhibit, during several days of the  4 conference, Teedyuscung testified to a litany of  5 abuses by settlers, proprietors and government  6 officials concerning traditional Indian hunting,  7 fishing and trapping lands.  Proprietors had allegedly  8 purchased title to the lands from Indians who had no  9 right to sell them, lands legally obtained from  10 Indians often had their boundaries extended without  11 further consultations with the tribes concerned and  12 Teedyuscung set out a series of proposals, these are  13 Indian proposals, to remedy these long standing  14 abuses.  These were they:  15  16 "I therefore now desire that you will produce  17 the writing and Deeds by which you hold the  18 land, and let them be read in public and  19 compelled that it may be fully known from what  20 Indians you have bought the lands you hold and  21 how far your purchase extends, that copies of  22 the whole may be laid before King George and  23 published to all the provinces under his  24 government.  What is fairly bought and paid  25 for, I make no further demands about.  But if  26 any lands have been bought of Indians to whom  27 these lands did not belong and had no right to  28 sell them, I expect satisfaction for these  29 lands.  And if the Proprietaries have taken in  30 more lands than they bought of true owners, I  31 expect likewise to be paid for that."  32 This is of great significance, my lord.  33  34 "But as to the persons to whom the  35 proprietaries may have sold these lands which  36 of right belong to me have made some  37 settlements, I don't want to disturb them or  38 force them to leave them but I expect a full  39 satisfaction shall be made to the true owners  40 of these lands tho the Proprietaries as I said  41 before might have bought them for persons that  42 hadno right to sell them."  43  44  45 Now my lord, why I say that's significant, this  46 last statement of Teedyuscung regarding third parties  47 that have received land grants and made settlements on 23794  Submissions by Mr. Jackson  1 those lands in relation to which Teedyuscung seeks  2 compensation from Pennsylvania but disavows any  3 intention to disturb settlers, pre-figures, my lord,  4 by some 200 years, paragraph 79 of the plaintiffs'  5 statement of claim.  6 A further proposal of Chief Teedyuscung related to  7 the settling of a boundary between Indian and British  8 territories.  And he said:  9  10 "With respect to our settlement, we intend to  11 settle at Wyoming, and we want to have certain  12 boundaries fixed between you and us, and a  13 certain tract of land fixed where it shall not  14 be lawful for us or our children ever to sell  15 nor for you or any of your children ever to  16 buy.  We would have the boundaries fixed all  17 around agreeable to the draft we gave you, but  18 we may not be pressed on any side but have a  19 certain country fixed for our use and the use  20 of our children forever."  21  22  23 Now, as to this boundary, my lord, the Delaware  24 chief believed that colonists had no right to lands  25 west of the Alleghanys and that if such a principle  26 were agreed, his people would re-settle the Wyoming  27 Valley.  Fort Augusta, the British trading post, would  28 then be the only non-Indian installation tolerated  29 inside this entire territory.  30 Now, this proposal relating to the idea of a  31 negotiated boundary between colonial and Indian  32 territory along the Allegheny divide, as later appears  33 as one of the elements of the Royal Proclamation, is  34 here set out, by a Delaware chief  as the Indian sine  35 qua non for peaceful coexistence between the Indian  36 nations and the British.  37 Now, my lord, the agenda set by Chief Teedyuscung  38 at the third Easton conference in 1757 was to re-  39 emerge in the fourth conference held a year later in  40 1758.  And I would go at this point, my lord, to page  41 163, the intermediary pages rehearse the deliberations  42 and negotiations leading up to the Fourth Easton  43 Conference held in October 1758 attracted one of the  44 largest, most representative cross-sections of Indian  45 delegates ever to assemble in one council.  There were  46 some 500 individuals present, including spokesmen for  47 each of the Six Nations, the Delawares of the 23795  Submissions by Mr. Jackson  1 Susguehanna, several lessers nations of northern and  2 western Pennsylvania.  And on the British side, along  3 with Governor Denny of New York, and Johnson's  4 Pennsylvania lieutenant, George Croghan, there was  5 governor Barnard of New Jersey, along with various  6 commissioners, assembly representatives, and  7 government councils.  8 Thomas King, who at this time was the Six Nations  9 chief from the Oneida Nation, reviewed how the  10 mischief of taking the Indian hunting lands along with  11 various parts of the western frontier, had alienated  12 Indian support.  Addressing himself, my lord, to the  13 governor of New Jersey, Chief King detailed how their  14 cousins the Minisinks were robbed of a great deal of  15 land and pushed back by the English settling so fast  16 upon them, so as not to know whether they had any  17 lands or not.  On behalf of the Minisinks, protests  18 that the English now "claim all the wild creatures and  19 will not let us come on your lands so much as to hunt  20 after them; you will not let us peel a single tree.  21 Surely, this is hard.  You take of us what lands you  22 please and the cattle you raise on them are your own;  23 but those that are wild are still ours and should be  24 common to both; for our nephews when they sold the  25 land, did not suppose to deprive themselves of hunting  26 the wild deer, or using a stick of wood.  We desire  27 you, the Governor, to take this matter into your care,  28 and see justice done to the Minisinks."  29 The Oneida chief finally addressed himself to the  30 Governor of Pennsylvania, and to the issue of the  31 Susguehanna lands which had been negotiated away from  32 the Iroquois under questionable circumstances at  33 Albany in 1754.  34 On the next page, my lord, middle paragraph, in  35 response Governor Denny of Pennsylvania told the  36 assembled delegates that the Pennsylvania proprietors  37 had directed him to release the reclaimed Susquehanna  38 lands and that these would be re-vested into Indian  39 proprietorship as soon as the Six Nations and the  4 0 Delawares had determined between themselves in whom  41 the lands were to re-vested.  Governor Barnard of New  42 York assured the Indians that all the problems of land  43 ownership on the North Delaware and settler-Indian  44 conflicts over hunting rights in that region would be  45 resolved before they departed from Easton.  Using Six  46 Nations delegates as mediators, Barnard negotiated a  47 cash settlement for all remaining Indian-claimed lands 23796  Submissions by Mr. Jackson  1 on the Delaware and promised the Minisinks continued  2 hunting and fishing rights in the surrendered  3 territory.  4 My lord, over on page 166, the Easton Conference of  5 1758, and the agreements made consequent thereto,  6 resolved most of the major disputes existing between  7 Pennsylvania and the Indian nations in and around the  8 province.  The return of land west of the mountain  9 divide to Indian ownership provided confirmation of  10 the importance of the clear boundary line separating  11 Indian from settler lands, a concept which had been  12 advocated by the Six Nations in their treaty  13 negotiations at Lancaster in 1743 and re-emerged as an  14 important agenda item at both Albany in 1754 and at  15 Easton in 1757.  This concept, which was one to which  16 Sir William Johnson heavily subscribed in 1758 was to  17 receive increasing attention from British officials  18 and the Indians for the remainder of the Seven Year's  19 War and would receive it's more most formal expression  20 in the Royal Proclamation of 1763.  21 My lord, the positive resolution at Easton of  22 outstanding land grievances, had strategic  23 implications in the ongoing military conflict between  24 the English and the French.  Dr. Stagg has shown how  25 throughout this period the British understood that the  26 position of the Iroquois Confederacy was critical in  27 determining the outcome of the continuation military  28 struggle with the French.  One example illustrates  29 Stagg's analysis.  As a result of word spreading to  30 the western tribe of the successful conference at  31 Easton and further to British promises that they would  32 take no reprisals for former Indian aggression, the  33 former Indian allies of the French agreed to withdraw  34 their support from Fort Duguesne and to leave the  35 armies of the two European combatants to settle their  36 differences alone.  Without the use of Indian advance  37 parties, the French were powerless to stop Forbes'  38 army from advancing on the French fortress.  The  39 French commander, seeing the last remnants of Indian  40 support leaving his camp, gave orders to destroy the  41 post and retreat before Forbes' army arrived.  Thus,  42 the French loss of the western tribes support  43 emanating from British demonstrating commitment to  44 resolve Indian land claims, led to a British victory  45 without the firing of a single round of amunition.  46 At page 168, my lord, in order to consolidate  47 Iroquois support to the British cause, Johnson called 23797  Submissions by Mr. Jackson  1 a Six Nations conference in April of 1759 which met at  2 the Mohawk castle of Canajohory.  The castle, my lord,  3 was the term used for the Mohawk villages, some of  4 which had a high palisade around them.  5 At the conference, Johnson raised several points of  6 importance to Anglo-Iroquois relations.  He brought  7 with him the completed deed of western lands  8 negotiated at Easton the previous October and pledged  9 that the Iroquois could take this as a sign that the  10 King had given all his governors in America not to  11 authorize any sale of land from Indians but what  12 should be transacted in an open and public meeting of  13 all the Indians concerned.  14 The bottom of the page, my lord, Johnson's pledges  15 at the Canajohory Conference, coupled with his further  16 promise that he would himself lead the expedition  17 against Niagara, resulted in a commitment by the  18 Iroquois to support the British in the campaign.  19 When Johnson was ordered by General Amherst,  20 general commander of British forces in North America,  21 to rendezvous at Oswego with General Prideaux, he had  22 with him some 900 Iroquois warriors.  As Dr. Stagg  23 points out, the six nation contingent played a vital  24 role in Johnson's successful campaign to take Fort  25 Niagara.  The conquest of the French at Niagara  26 strengthened British interest among North American  27 tribes generally and solidified Iroquois support in  28 particular.  29 Now, although the final campaign of 1759, the  30 successful assault on Quebec by General Wolfe, did not  31 involve Indian military assistance, the campaign in  32 1760 and the final reduction of Montreal took on the  33 now familiar pattern on which the Indian allies of the  34 British played an important part.  As Stagg relates in  35 February 1760, Johnson met with the Onondaga Council  36 where he learned that during the previous months  37 several pro-French Indians from Canada had attempted  38 to prevail upon the Iroquois to stay neutral in an  39 inevitable clash over Montreal.  Johnson was  40 successful at halting any alliance of war or  41 neutrality between the Six Nations and the Canadian  42 tribes and by July, 1760, he was able to muster nearly  43 600 Iroquois warriors for Amherst's army.  When  44 Johnson's Six Nations contingent reached Oswego to  45 rendezvous with Amherst, the presence of such a large  46 Six Nations force under arms caused extreme  47 apprehension among the former pro-French tribes 2379?  Submissions by Mr. Jackson  1 residing along th southern shore of Lake Ontario. Out  2 of fear or respect for the size of the British army, a  3 number of these Indians joined Amherst's troops during  4 the trek eastward.  As the Commander-in-Chief made his  5 way towards Montreal, minor victories over the French  6 persuaded 800 more formerly hostile Indians to pledge  7 neutrality in a final battle in a war against French  8 Canada.  By the time Amherst reached Montreal, he had  9 almost 1000 Indian warriors in his ranks.  The fate of  10 the French trading capital was a foregone conclusion,  11 says Stagg.  Amherst's 10,000 regular soldiers and  12 militia, along with the largest Indian force ever to  13 accompany a British expedition, approached their  14 objective unhampered by any resistance.  With only  15 2000 civilians and regular soldiers at his disposal,  16 cut off from any means of relief, and abandoned by his  17 Indian auxiliaries, Governor Vaudreil had no choice  18 but to surrender.  19 In September the 8th, 1760, my lord, the French  20 governor signed Amherst's articles of capitulation,  21 turning over all of Canada to the British.  The  22 contest between France and Britain for control of the  23 middle and eastern portions portions of the continent  24 began more than a century before, was finally ended.  25 Although the european phase of the Seven Year's war  26 would not officially draw to a close until the signing  27 of the Peace of Paris in February, 1763, the military  28 struggle between Britain and France in North America  29 was now largely over.  30 Now, my lord, you may recall that at an early stage  31 during the evidence of Mr. Morrison, my friend, Mr.  32 Goldie, rose to question the relevance of some of the  33 material which has been set out above on the basis  34 that it did not speak to the application of the Royal  35 Proclamation to British Columbia.  36 My lord, in the same vein, Mr. Goldie might have  37 asked, and your lordship may have running through his  38 mind, how Indian participation in military campaigns  39 fought over 200 years ago, 3,000 miles from British  40 Columbia, can help resolve the legal issues involved  41 in the pleadings in this case?  The plaintiffs'  42 response to that question, my lord, is that for 150  43 years prior to the Treaty of Paris, and the Royal  44 Proclamation of 1763, Indian nations had been  45 essential factors in the economic, military and  46 political fabric of North America.  Through successive  47 wars, commercial confrontations and jurisdictional 23799  Submissions by Mr. Jackson  1 power struggles, they had taken sides, exerted their  2 influence and for the most part maintained the balance  3 of power between the two European rivals.  This review  4 of the pre-Proclamation history demonstrates how  5 Indian insistence on and British acknowledgement of  6 the principle of Indian rights to their territories be  7 respected and protected and there be no change in  8 territorial arrangements without Indian consent was  9 fundamental to the survival and expansion of British  10 interests in North America.  These principles, my  11 lord, form part of the bedrock of Canadian history and  12 nationhood.  13 In the mid-18th century, the Six Nations of the  14 Iroquois confederacy and their allies, were able to  15 insist upon the enforcement of these principles  16 without resort to courts of law by virtue of military  17 and diplomatic power.  In the late 20th century in  18 British Columbia, the military context is no longer in  19 issue.  And therefore the Gitksan and Wet'suwet'en  20 seek to negotiate a settlement based upon the  21 recognition of those same principles.  Because they  22 are fundamental legal principles upon which the shape  23 of Canada was forged, they turn to the courts as the  24 appropriate means to insist upon their acknowledgement  25 in the 20th century by British Columbia and Canada.  26 Underlying, my lord, this review of the covenant  27 chain of treaties and conferences, is the Indian  28 insistence of and the British recognition that the  29 Indian-Crown relationships be grounded in justice.  30 The word crops up again and again in both the  31 exchanges between the Iroquois and the colonial  32 authorities and in the Imperial instructions to the  33 colonial authorities.  34 The Six Nations and the Crown came to agree that  35 justice involved the recognition of the rights of the  36 Indian nations as the original proprietors of the  37 soil, that their rights to their territories could not  38 be changed without their consent, expressed in public  39 council through the treaty protocol and that the Crown  40 assume the obligation of protecting the Indian nations  41 from frauds and abuses in relation to their  42 territorial rights.  43 The plaintiffs' submission submission, my lord,  44 are what Madam Justice Wilson in the Motor Vehicle  45 Reference case has referred to as the bedrock  46 principles that underlie a system.  47 It is the plaintiffs' submission that these 23800  Submissions by Mr. Jackson  1 principles are part of the common law and are  2 recognized and affirmed in the Royal Proclamation.  3 These principles of justice do not lose contemporary  4 significance simply because the Gitksan-Wet'suwet'en  5 lack the military and political power to compel that  6 recognition by the provincial and federal defendants.  7 It is our submission that these principles apply  8 to the resolution of this case by virtue of being part  9 of the common law, through the Royal Proclamation as  10 an entrenched provision in the constitution of the  11 colonies in North America and applicable to British  12 Columbia and by virtue of having been entrenched in  13 section 25 and 35 of the Constitution Act.  14 My lord, that was as far as I had intended to get  15 this evening and I will finish tomorrow morning and  16 Mr. Rush will take over the next part of the argument.  17 THE COURT:  All right.  Thank you.  Do you want to start at 9:30  18 or 10 o'clock?  19 MR. JACKSON: I think it would be fine to start at ten, my lord,  20 in terms of our schedule.  21 MR. GOLDIE:  I wonder, my friend has referred to a schedule  22 several times, I wonder if he could supply us with it?  23 It would be of considerable assistance.  24 MR. JACKSON:  Our schedule is I think one which endeavours to  25 use the 18 days to the best advantage.  It is subject  26 to realignment and readjustment and we are still  27 working it out for the second and third weeks, my  28 lord.  I don't know if it will assist my friend but if  29 we can provide it, we will.  30  31 (PROCEEDINGS ADJOURNED TO THURSDAY, APRIL 5, 1990 AT  32 10 O'CLOCK A. M.)  33  34  35 I hereby certify the foregoing to be  36 a true and accurate transcript of the  37 proceedings herein to the best of my  38 skill and ability.  39  40  41  42 Wilf Roy  43 Official Reporter  44  45  46  47


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