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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-25] British Columbia. Supreme Court May 25, 1990

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 27373  Submissions by Mr. Goldie  1 May 25, 1990  2 Vancouver, B.C.  3  4 (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT)  5  6 THE REGISTRAR:  Order in court.  In the Supreme Court of British  7 Columbia, this 25th day of May, 1990.  Delgamuukw  8 versus Her Majesty the Queen at bar, my lord.  9 THE COURT:  Mr. Goldie.  10 MR. GOLDIE:  My lord, I put up another map there which is a  11 Government of Canada map and I intended to demonstrate  12 drainage areas.  This in blue is the drainage area of  13 the Saint Lawrence.  The colour is not too discernible  14 but -- the variation in colour is not too discernible  15 but there is a very -- that provides you with the  16 drainage of the Hudson's Bay.  This is the drainage of  17 the MacKenzie, this is the Pacific Coast, and up here  18 is a tiny little sliver of drainage for the  19 Mississippi.  Now, unfortunately, this map doesn't  20 combine any place names or anything of that order.  It  21 provides a more detailed indication of drainage areas  22 than one of Dr. Farley's maps which was a North  23 American drainage area.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  That one is limited to Canada.  26 THE COURT:  So all of Southern Alberta drains into Hudson's Bay.  27 MR. GOLDIE:  Yes, with the exception as I say --  28 THE COURT:  Except that little sliver.  29 MR. GOLDIE:  Tiny little bulge here.  It's — the Hudson's Bay  30 drainage area is -- runs right up to, as one would  31 expect, right up to the height of land in the Rockies  32 in its southern extension.  33 THE COURT:  The Bow River runs into south Saskatchewan which  34 runs into Hudson's Bay as I recall it.  35 MR. RUSH:  Yes.  36 THE COURT:  All right.  The Bow and its tributaries.  37 MR. GOLDIE:  My lord, I am at page 13 of section 4 part 5  38 paragraph 35, and the purpose as I note of this  39 section is to -- is to indicate that British Columbia  40 was not part of Rupert's Land.  Obviously it is not  41 part of Rupert's Land when Rupert's Land was  42 surrendered to the Crown or became part of Canada, but  43 we are talking about it in its historical perception.  44 I say in paragraph 35:  In the grant of Vancouver  45 Island to the Hudson's Bay Company, January 13, 1849,  46 the sixth recital implies that what became British  47 Columbia or part of it lies to the westward and also 27374  Submissions by Mr. Goldie  1 to the northward of the territory known as Rupert's  2 Land.  And that is the -- this is again the authority  3 under -- the tab number is again a reference to  4 Martin, book of 1849.  5 MR. RUSH:  This is not an exhibit, is it?  6 MR. GOLDIE:  I don't recall.  You may well be right.  7 MR. RUSH:  I think it is a treatise that you added to the  8 collection.  9 THE COURT:  Yes.  10 MR. GOLDIE:  At the bottom of the page there is a reference to  11 the licences which extended to those parts in North  12 America beyond the limits of the charter which the  13 Hudson's Bay Company presently enjoin.  The reference  14 to a Board of Trade letter in June of 1837.  15  16 These licences, in nowise invalidated or  17 questioned the rights possessed under the Royal  18 Charter of 2nd May, 1670 which has been  19 recognized by various treaties and Acts of  20 Parliament.  From the correspondence of 7th  21 September and 30th October, 1846, laid before  22 Parliament, 10th August 1848, it would appear  23 that the Crown considered the Rocky Mountains  24 as the eastern boundary of the territory over  25 which the Hudson's Bay Company have the  26 exclusive right of trading with the natives for  27 twenty-one years from 13 May, 1838.  Previous  28 to the recent Oregon treaty, and so on.  29  30 THE COURT:  I don't see that, Mr. Goldie.  Where is it?  31 MR. GOLDIE:  It is right at the bottom of page 5 of Martin and  32 under tab V/4-35.  33 THE COURT:  Yes.  34 MR. GOLDIE:  And following the blue divider sheet is a copy of  35 the Charter of Vancouver's Island and on the second  36 page it's the recital beginning with the words:  37  38 "And whereas by our grant or royal licence..."  39  40 Just a little below the half-way mark:  41  42 "...bearing date the 13th day of May, 1838,  43 under the hand and seal of one of Our then  44 Principal Secretaries of State, we granted and  45 gave Our licence to the said Governor and  46 Company and their successors, for the exclusive  47 privilege of trading with the Indians in all 27375  Submissions by Mr. Goldie  1 such parts of North America to the northward  2 and westward of the lands and territories  3 belonging to the United States of America as  4 should not form part of any of Our provinces in  5 North America, or of any lands or territories  6 belonging to the United States", and so on.  7  8 Now, the point there, my lord, is that that was a  9 separate transaction in respect of the Hudson's Bay  10 Company and fell outside the original grant.  And back  11 to paragraph 36, I say that even if British Columbia  12 could be understood to be part of Rupert's Land as the  13 Plaintiffs as we understand it contend, the Royal  14 Proclamation did not apply to the Hudson's Bay Company  15 Territory in fact, nor could it apply in law since  16 Rupert's Land was a settled colony.  And the reference  17 there, my lord, is to the Baker Lake judgment which I  18 have already referred to and Mr. Justice Mahoney at  19 page 532 where he says:  20  21 "The Baker Lake area lies within the former  22 proprietary colony of Rupert's Land, the  23 territory granted to the Hudson's Bay Company  24 by Royal Charter of Charles II May 2, 1670.  It  25 is common ground that Rupert's Land was a  26 settled colony, rather than a conquered or  27 ceded colony.  It is to be noted that the  28 particular legal consequences of settlement, as  29 distinct from conquest or cession, in so far as  30 the domestic laws of a colony were concerned,  31 was not articulated in a reported case until  32 1693", and so on.  33  34 And its conclusion is:  35  36 "The Royal Proclamation does not and never did  37 apply to Rupert's Land."  38  39 And in my respectful submission that is a correct  40 statement of law.  And then part 3 or section 3  41 subsection 3, Britain made no claim to British  42 Columbia in 1763, and in my submission it is clear  43 that there is no assertion to the northwest --  44 assertion of sovereignty or claim to the northwest  45 part of North America and the part of Britain, and I  46 say in paragraph 37, while Virginia Charter of 1609  47 purported to establish that colony from the coast of 27376  Submissions by Mr. Goldie  1 the Atlantic to the Pacific Ocean by two straight  2 lines drawn along the colonies northern and southern  3 boundaries, Britain did not assert such a claim either  4 during the negotiations leading up to the Treaty of  5 Paris or subsequently.  In any event, none of the 13  6 American colonies originally granted charters to the  7 Pacific Ocean were located north of latitude 48 north.  8 And the reference there is -- the first reference is  9 to a map identified in one of Dr. Greenwood's  10 footnotes.  It is the pallorette map that I referred  11 to last night, and I draw your lordship's attention to  12 the lines on that map which are purported to be  13 extensions of the Virginia colonies.  And then at  14 paragraph 38 I say in any event, the Albany Congress  15 held by the British colonies in June of 1754 to deal  16 with the Indian land problem, the Albany Commissioners  17 recommended that the bounds of those colonies which  18 had charters to the Pacific Ocean be contracted and  19 limited to the Alleghany Mountains.  20 THE COURT:  Did they agree?  21 MR. GOLDIE:  Without relying on my memory, my lord, I'd like to  22 turn to the authority.  23 THE COURT:  All right.  24 MR. GOLDIE:  Which is 35, yes.  This is the document of — an  25 extract from the document submitted by Mr. Morrison,  26 Exhibit 1026-7, and the reference at page 5 after  27 some -- after comments about the state of affairs --  28 the sad state of affairs between the Indians and the  29 colonies says that at the bottom of the page about  30 eight lines up:  31  32 "That the complaints of the Indians, relative to  33 any grants or possessions of their lands  34 fraudulently obtained be enquired into and all  35 injuries redressed.  That the bounds of these  36 colonies which extend to the South sea, be  37 contracted and limited by the Alleghenny or  38 Apalachian mountains, and that measures be  39 taken for settling from time to time Colonies  40 of His Majesty's protestant subjects, westward  41 of said Mountains convenient Cantons to be  42 assigned for that purpose; and finally:  That  43 there be a Union of His Majesty's several  44 Government on the Continent, that so their  45 Councils, Treasure and strength may be employed  46 in due proportion against the common Enemy.  47 All which is submitted." 27377  Submissions by Mr. Goldie  1  2 Now, that doesn't seen to me to state  3 unequivocally that that proposal was agreed and I'll  4 have a look at the rest of that exhibit, my lord.  I  5 understood it had been agreed but that document isn't  6 that conclusive.  And in the next paragraph I note  7 that in Johnson v. M'Intosh, Chief Justice Marshall  8 described as extravagant the suggestion in the  9 colonial charters that Britain had acquired rights to  10 lands extending to the Pacific Ocean based on  11 discovery of the Atlantic seaboard.  And that  12 reference is under tab 39 and the page number, my  13 lord, is the stamped number page 281, the left-hand  14 column in the first paragraph where the Chief Justice  15 states, and I quote:  16  17 "This river was comprehended in the chartered  18 limits of Virginia; but, though the right of  19 England to a reasonable extent of country, in  20 virtue of her discovery of the sea-coast, and  21 of the settlements she made on it, was not to  22 be questioned; her claim of all the lands to  23 the Pacific Ocean, because she had discovered  24 the country washed by the Atlantic, might,  25 without derogating from the principle  26 recognized by all, be deemed extravagant."  27  28 And I go on to say that in point of fact Britain could  29 make no claim to British Columbia even based on  30 exploration and discovery until 1778, some 15 years  31 after the Royal Proclamation.  And I am there  32 adverting to the principle which Chief Justice  33 Marshall referred to in the paragraph I just read.  34 In the reference Ownership of the Bed of the  35 Strait of Georgia, Mr. Justice Dickson as he then was  36 observed that the British claim to the Westcoast of  37 North America depended on the exploration of Captain  38 Cook in 1774, Captain Meares in 1788, and Captain  39 Vancouver in 1792.  And his lordship was there  40 confining his --  41 THE COURT:  Was Meares not an American?  42 MR. GOLDIE:  Meares was sailing I think under the British flag.  43 THE COURT:  I thought he was a Bostonian  44 MR. GOLDIE:  I don't think so, my lord.  I think his previous  45 service had been in the Navy and he left the Navy and  46 was out adventuring on his own but I'll check that.  47 MR. RUSH:  Does my friend assert the proposition that Meares, 2737?  Submissions by Mr. Goldie  1 Cook and then Vancouver asserted settlement and/or  2 possession at the same time as discovery as suggested  3 by Chief Justice Marshall?  4 MR. GOLDIE:  No.  I am simply saying that when the question of  5 the Ownership of the Bed of Strait of Georgia came up,  6 and it's rather difficult to think of settlement on  7 the Bed of the Strait of Georgia, Mr. Justice Dickson  8 was saying the events that we are looking at commenced  9 with those particular voyages.  10 THE COURT:  You are not adopting that as a complete statement.  11 MR. GOLDIE:  No, no.  The only -- the only point is I draw your  12 lordship's attention to the dates, all of which are  13 after 1763.  14 THE COURT:  Yes.  15 MR. GOLDIE:  Then at paragraph 42, Cook is credited with the  16 first British exploration of the west coast of British  17 Columbia in 1778.  However, as the basis for any claim  18 to sovereignty, even that voyage is questionable  19 because Cook saw nothing of what is now the Mainland  20 of British Columbia.  He sighted the entrance to the  21 Strait of Juan de Fuca and reached the immediate  22 vicinity of Nootka Sound on Vancouver Island.  23 Furthermore, the narrative of his voyage records Cook  24 taking possession only in Prince William's Sound at  25 the head of the Gulf of Alaska.  Those references are  26 to Dr. Farley's report, my lord.  27 Historians generally agree that it is unlikely  28 that Sir Francis Drake sighted British Columbia on his  29 voyage around the world in 1577 to 1580.  A review of  30 the record of his journeys indicates that at the very  31 most the only part of present day British Columbia he  32 could have sighted was Vancouver Island.  Then there  33 is a reference there.  From landward the Englishman,  34 Anthony Henday, had reached only as far as the  35 foothills of the Rockies in 1754, '55.  Henday was as  36 your lordship may recall an employee of the Hudson's  37 Bay Company who set out and reached as far as what  38 some people regard -- some people say as the present  39 sight of Calgary.  That reference too is also to Dr.  40 Farley's report.  41 The first British and European explorer to reach  42 British Columbia by land was Alexander MacKenzie in  43 1793, 30 years after the Treaty of Paris and the  44 Proclamation -- and the Proclamation of 1763.  45 No published maps or other documents prior to 1763  46 show sovereignty of any country over what is now the  47 mainland of British Columbia. 27379  Submissions by Mr. Goldie  1 An argument, and in our submission, that Britain  2 asserted a claim to British Columbia prior to 1763 is  3 entirely inconsistent with the instructions given to  4 Cook in 1776, and these are set out in abbreviated  5 form.  6  7 " are to leave those Islands..."  8  9 being what were then called the Society Islands:  10  11 " the beginning of February, or  12 sooner...and then the coast of New  13 Albion..."  14  15 which I believe was Drake's name, before that part of  16 the North American continent that he touched on:  17  18 "...endeavouring to fall in with it in the  19 latitude of 45 degrees North...  You  20 are... strictly enjoined not to touch upon any  21 part of the Spanish dominions on the Western  22 Continent of America... and be very careful not  23 to give any umbrage or offence to any of the  24 inhabitants or subjects of His Catholic  25 Majesty.  And if, in your farther progress to  26 the Northward, as hereafter directed, you find  27 any subjects of any European Prince or State  28 upon any part of the coast you may think proper  29 to visit, you are not to disturb them, or give  30 them any just cause of offence, but, on the  31 contrary, to treat them with civility and  32 friendship.  33 ...You are also, with the consent of the  34 natives, to take possession, in the name of  35 the King of Great Britain, of convenient  36 situations in such countries as you may  37 discover, that have not already been  38 discovered or visited by any European power;  39 and to distribute among the inhabitants such  40 things as will remain as traces and testimonies  41 of your having been there; but if you find the  42 countries so discovered are uninhabited, you  43 are to take possession of them for His Majesty,  44 by setting up proper marks and inscriptions, as  45 first discoverers and possessors."  46  47 So it is clear that Cook, an officer in the Royal 27380  Submissions by Mr. Goldie  1 Navy, was not on any voyage of warfare, he was on a  2 voyage of discovery.  3 Now, in summary, my lord, it is my submission that  4 that is no support for the proposition of French  5 claims west of the Rockies that were ceded to Britain  6 in 1763, and there is no evidence of British claims in  7 what is now British Columbia in 1763.  And in support  8 of that, complimentary to that, is the next part which  9 is entitled British Columbia was Terra Incognita in  10 1763.  11 One aspect of the historical context of the Royal  12 Proclamation which makes its applicability to British  13 Columbia unlikely is the status of British Columbia as  14 terra incognita in the Europe of 1763.  The British,  15 even assuming awareness of all other European and  16 Russian exploration in the area, did not know whether  17 British Columbia was land or sea.  18 Because exploration from Europe proceeded from  19 west to North America and east around Africa, the  20 exploration and discovery of the Pacific Northwest  21 occurred relatively late in the history of European  22 affairs.  And that reference, my lord, is to the  23 evidence of Dr. Farley.  I won't read it.  24 Paragraph 50, up to the date of the Proclamation  25 there had been no exploration by sea of the northwest  26 coast of America north of San Francisco and south of  27 the most southerly point reached by Bering and others  28 sailing under the Russian flag.  29 In 1763, there were no published maps that  30 purported to show the Pacific Coast of North America  31 based on accurate and actual observations of it north  32 of Cape Blanco and south of present day Anchorage,  33 Alaska.  Cape Blanco is present day United States of  34 course.  Up to the date of the Proclamation there had  35 been no exploration by land by Europeans of what is  36 now the mainland of British Columbia.  After 1763  37 there was extensive definitive sighting of the mapping  38 of the mainland coast.  And that reference, my lord,  39 is again to Dr. Farley's report, what is paragraphs 10  40 and 11, and that is the paragraph that I have read, is  41 a paraphrase of those paragraphs of the report.  And  42 then on page 20 I get into exploration in the 18th  43 century, first From Seaward.  By 1602 -- by that  44 period 1602 - '03 Spain had reached --  45 THE COURT:  I am sorry, Mr. Goldie, can you tell me what exhibit  46 number is Dr. -- I can never remember his name, tab  47 51? 27381  Submissions by Mr. Goldie  1  MR.  GOLDIE  2  THE  COURT:  3  MR.  GOLDIE  4  THE  COURT:  5  MR.  GOLDIE  6  7  THE  COURT:  8  MR.  GOLDIE  9  10  11  12  13  ]  14  15  16  17  18  MR.  RUSH:  19  20  21  ]  22  23  24  25  26  MR.  GOLDIE  27  28  29  30  THE  COURT:  31  1  32  MR.  GOLDIE  33  34  35  36  THE  COURT:  37  38  MR.  GOLDIE  39  40  41  42  43  44  45  46  47  :  Oh, Dr. Farley.  Yes.  :  It is 114, my lord.  Thank you.  :  And much of what is in the argument here is based  upon his evidence and his report.  Yes.  :  So Spain had reached the vicinity of Cape Blanco  about 43 degrees north by 1602, 1603.  Spain did not  resume exploration beyond that point until the last  quarter of the 18th century.  The first Europeans to  sight what is now the British Columbia coast were  members of the Perez Expedition of 1774.  And Dr.  Farley in his report enlarges upon that.  Perez did not take possession in the name of  Spain; in fact, he did not put ashore in any part of  what is now British Columbia.  Excuse me, my lord, I'd be grateful to my friend if  he could explain what he means by taking possession  of.  He made reference yesterday to Johnson v.  M'Intosh and said that in that case the Chief Justice  referred to discovery as a basis for sovereignty and  indicated the title had to be consummated by  possession and I think I would be aided by my friend's  explanation of what he means by possession.  :  Well, I think it's not my explanation that is of  any particular importance, my lord.  I think it is  clear what is meant as settlement.  But the documents  of the day speak for themselves in that regard.  Well, there could be a declaration of possession as  Cook was instructed to do without settlement.  :  Yes.  There is always the gap between the reach and  the grasp and the concept that Chief Justice Marshall  was talking about when he said consummated by  possession meant people on the ground.  Are you able to say whether Perez made a declaration  of possession?  :  I do not believe so.  I can see what Dr. Farley  said about that.  He simply says as for the Spanish --  I am looking under tab 53:  "...we know that Perez did not take possession  in the name of Spain; in fact he did not put  ashore in any part of what is now British  Columbia.  Hezeta..."  This was another Spanish explorer: 27382  Submissions by Mr. Goldie  1  2 "...landed in the vicinity of the Moclips River,  3 north of the present Grays Harbour, Washington.  4 There he took possession, naming the area Rada  5 de Bucareli.  His second-in-command, Bodega,  6 after becoming separated from the senior  7 officer proceeded north to a small port which  8 he named 'Remedios' at the northern end of  9 Kruzof Island and took possession there.  At  10 Bucareli Bay, off the west coast of Prince of  11 Wales Island Bodega's pilot was sent ashore to  12 take possession."  13  14 So there were acts of possession which were understood  15 by all concerned, plaques were left and things of that  16 order.  17 THE COURT:  Prince of Wales Island is off Anchorage, is it not,  18 or is that the one that -- Prince of Wales is the one  19 that's off Prince Rupert?  20 MR. GOLDIE:  I don't want to speculate on that, my lord.  I will  21 check that.  22 THE COURT:  All right.  23 MR. GOLDIE:  A Russian expedition in the area was led by Bering  24 in 1741.  However, there is no direct evidence that  25 the continental coast south of the Alaska Peninsula  26 was visited by Russians between the time of Bering's  27 voyage and the arrival of Perez on the coast, which  28 was 1774.  And Cook's actual arrival here was 1778.  29 While these things were going on, there was  30 movement west by land and exploration of the northwest  31 coast of North America which as we have noted occurred  32 first from seaward.  By the time the initial contact  33 had been made from landward the delineation of the  34 coast line was already established.  That was going to  35 the work of Vancouver amongst others.  36 The exploration of northwest America from landward  37 was driven by the fur trade.  Henry Kelsey reached the  38 plains of what is now Manitoba in 1690.  Members of  39 the La Verendrye family in the period 1741 - 43 may  40 have reached as far as the foothills of the Rockies.  41 In 1754 to 1755, the Englishman Henday travelled  42 perhaps as far as the present day city of Calgary.  43 This was the first European penetration of the broad  44 expanse of country lying between the north and south  45 Saskatchewan Rivers.  And that too is Dr. Farley's  46 report.  47 As noted above, the first known entry in British 27383  Submissions by Mr. Goldie  1 Columbia from landward by European was the journey of  2 MacKenzie in 1793, 30 years after the Treaty of Paris  3 and the Royal Proclamation.  4 There is no direct evidence to suggest that Asian  5 exploration of what is now the British Columbia coast  6 was in any more advanced state than that of the  7 Europeans.  And that reference is to Dr. Farley's  8 evidence in the stand.  9 And then there is an extensive examination of the  10 maps -- the maps of the day.  The lack of European  11 knowledge about North America in the 18th century is  12 demonstrated by the maps of the time.  Where no real  13 geographical knowledge was available, theoretical  14 conjecture was often resorted to.  15 For example, the location of the mythical Quivira  16 on maps was moved about by cartographers to fill in  17 areas of ignorance.  And Dr. Farley noted that on a  18 number of instances.  Under tab 61, he was -- his  19 attention was drawn to the item Quivira on a map which  20 had been examined and he was asked the question at  21 line 16:  22  23 "Q  Does this indicate to you any additional  24 knowledge on the part of the cartographer?  25 A  Just the opposite, sir.  That name Quivira,  26 which stems originally from the Coronado  27 explorations expeditions in south-west -- what  28 is now the American south-west, that name came  29 to be applied rather like the land of Prester  30 John (ph) that appeared on European maps.  It  31 got moved around and applied in areas of  32 ignorance simply to fill the gaps you might  33 say, the otherwise vacant spaces on the map."  34  35 I believe Prester John is the mythical African  36 kingdom that fascinated Europeans for many years.  37 Paragraph 62.  The mapping of northwest America on  38 a factual basis did not occur until the publication in  39 1784 of the account of Cook's third voyage.  And that  40 reference is to Dr. Farley's report.  41 The absence of firsthand information and the  42 resulting speculation about the area before 1784 is  43 evident from an examination of 17th and 18th century  44 maps, firstly the French maps.  45 Despite the ascendancy of French cartography in  46 the first half of the 18th century French maps are  47 replete with misconceptions about northwest America 27384  Submissions by Mr. Goldie  1 based on spurious accounts of alleged voyages.  2 Commonly the maps show the American coast indented by  3 a large "Sea of the West" and contain references to  4 the apocryphal Mozeemleks.  And Dr. Farley notes that.  5 A striking example of the ignorance about  6 northwest America at the beginning of the 18th century  7 is Sanson's map of 1700.  Now, that map, my lord -- my  8 lord, the location of that map is in Dr. Farley's  9 folio, Exhibit 1149, and map 17.  10 THE COURT:  Are you going to be looking at a lot of these maps,  11 Mr. Goldie?  12 MR. GOLDIE:  I am -- not extensively, my lord.  13 THE COURT:  I think, if you wouldn't mind, maybe I will come  14 down to some convenient place rather than -- I haven't  15 got room for them up here.  16 MR. GOLDIE:  Well, is it convenient for your lordship to have  17 the folio Exhibit —  18 THE COURT:  All right.  19 MR. GOLDIE:  — 1149 if it is available?  20 THE COURT:  We will clear this away.  Get that please.  21 MR. GOLDIE:  The one that I am referring to, my lord, is  22 1149-17, it's map number 17.  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  And the point that is being made is that if your  25 lordship simply looks over these two representations  26 of the globe, the European side, the African side is  27 not all that unrelated to what we consider to be  28 reality today.  South America has what appears to be a  29 recognizable shape, but the northwest coast of North  30 America is simply completely at odds with what is  31 reality, and the most striking feature is the large  32 indentation which is identified Mer de la West or the  33 Western Sea.  The other striking feature is what  34 purports to be a sea passage from the Arctic to the  35 Mer de la West, and in my submission that's a clear  36 example of what Dr. Farley was talking about as  37 conjecture when it comes to the delineation of  38 physical features.  39 The Vaugondy map which is number 18 is 1750 and in  40 my submission shows the continued state of geographic  41 ignorance about northwest America some 50 years later.  42 West of Hudson's Bay and in very bold letters are the  43 words "Terre Inconnues".  The placement of Terre  44 Inconnues extends all the way from the 45th parallel  45 to the Arctic Circle.  Even in the western area for  46 which some detail is shown the old myth such as  47 Teguaio and the territory of the Mozeemleks appear. 27385  Submissions by Mr. Goldie  1 Teguaio is below Quivira.  2 Vaugondy, as Dr. Farley identified for us, was a  3 member of the Royal Academy in Paris.  The reference  4 to Terre Inconnues is a reflection of the scientific  5 approach of the best French cartographers toward their  6 mapping; what was known was portrayed, and areas of  7 ignorance were left blank.  8 De L'Isle's map of 1752 is number 19, and it too  9 demonstrates a great deal of confusion relative to  10 northwest America.  It represents or it depicts the  11 spurious accounts of de Fonte and La Hontan.  The  12 cartographers' attempts to incorporate these accounts  13 with factual information from the Bering expedition of  14 1741 is also seen, and it takes some time to try and  15 even make sense out of what is shown here.  He shows  16 voyages across the Pacific but then we continue to  17 have the huge Mer de la West -- we continue to have  18 what looks like a canal leading up to the Arctic, up  19 to the north and in short the depiction of the  20 northwest coast of North America has even less  21 relationship to reality than Sanson.  22 THE COURT:  I don't see the Sea of the West on this one.  23 MR. GOLDIE:  If your lordship would look to the right-hand side  24 of the map at about -- the lower half there is --  25 California is right down in the bottom.  2 6 THE COURT:  Yes.  27 MR. GOLDIE:  And then right above California is a dark  28 indentation that's marked Mer de la West discovered by  29 J. de Fuca in 1592.  30 THE COURT:  I am sorry, I just don't see it.  We are looking  31 at —  32 MR. GOLDIE:  Number 19.  33 THE COURT:  Oh, that will explain it.  Oh, yes.  That's a lot  34 easier to see.  35 MR. GOLDIE:  That's De L'Isle, and then Vaugondy is number 20  36 but my next reference is to Muller, 20, that's  37 correct, yes, thank you.  38 Paragraph 69 of my argument.  In 1754 Muller  39 prepared a map containing the results of Bering's  40 second expedition.  The entire coast from Cape Blanco  41 to Mount St. Elias is conjectural.  Northwest America  42 is shown largely as blank.  And the references there  43 are to Dr. Farley's report, to his evidence, and to  44 the map itself.  And your lordship can see that from  45 the map that there is -- that the cartographer was in  46 considerable doubt between the two geographic features  47 that I referred to.  That's 1754. 27386  Submissions by Mr. Goldie  1 And then we come to Bellin, another noted French  2 cartographer in the mid 18th century.  His map of 1755  3 contains the words "On n'a aucune Connaissance de ces"  4 and the word "parties" should be added to the text.  5 THE COURT:  What map number is that?  6 MR. GOLDIE:  That's 14, my lord, if I can go back to that.  7 That -- underneath the insert or the cartouche headed  8 Remarks if you go directly below that, my lord, you  9 see the words "sont des Terres ou la Mer", in other  10 words that he didn't know whether it was land or sea,  11 and the words with respect to northeast, "ces parties  12 sont entierement inconnues", and then we have again an  13 apparent indication of the inland sea La Mer de la  14 West, those words occurring east of what appears to be  15 the coast of the northwest coast of the continent  16 which is not even completed by Bellin in above --  17 about the 48th parallel.  It was the view of Dr.  18 Farley that this map to him showed that Bellin was  19 skeptical of the myths of de Fuca and de Fonte which  20 figured largely in the idea of a huge western sea and  21 after a connection to the -- between the Arctic and  22 the Pacific.  And a general contrast that I ask your  23 lordship to note is the degree of detail which --  24 using Bellin as an example, the degree of detail that  25 one finds in the east.  The cartographer had a good  26 deal of information from which to work in detail  27 regarding the east coast of North America and the  28 south extending over through what is now New Mexico,  29 over to California.  30 Now I turn to the British maps and I say that a  31 review of 18th century English maps demonstrates that  32 the British have no better idea than the French of the  33 geography of the northwest America.  34 Bowen's smaller scale map of 1763, that's number  35 11.  Does your lordship have that?  3 6    THE COURT:  Yes.  37 MR. GOLDIE:  Again, the overall impression is that the map-maker  38 had a pretty good sense of the east coast of North  39 America extending down through the Gulf of Mexico to  40 Central America and South America.  He had a pretty  41 good idea of the island in the West Indies and pretty  42 fair ideas of the west so far as the Spanish  43 settlements up to the point of the Spanish settlements  44 in New Mexico and what is now California.  But beyond  45 that, he was -- he had either nothing to show or he  46 had -- he showed the Mozeemlek country and he had  47 substantial parts unknown and then a very large gap in 27387  Submissions by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  THE COURT:  MR. RUSH:  which he didn't place any information at all.  The  point that I ask your lordship to take into  consideration is that without going into minute  details all of these maps simply show information on  the east, lack of information on the northwest.  Well, I take issue with that, my lord.  My friend's  use of the word "all of these maps" I think for that  purpose my friend would have to take you to all of  them to illustrate that point.  Well, that's submission surely.  It may be thought  by opposing counsel to be overly general or  exaggerated or inaccurate but it seems to me that it's  a statement counsel is entitled to make in argument.  I am aware of a difference of viewpoint from the  course of the trial between counsel as to what these  maps show, but I take it Mr. Goldie's submission is  that these maps all show a lack of understanding about  the northwest coast.  My lord, I don't mean to interrupt my friend for the  purposes of making that argument.  I would have  thought it was common ground that the statement that  all of these maps, that is the only point that I rise  to, was departing from the common ground that each of  us has different views of the existing cartography and  what it shows.  MR. GOLDIE:  I preceded that remark, my lord, by saying, putting  to one side the minutia of the details, all one has to  do is to stand back and look at these maps and one  sees on the east detail, one sees in the northwest  lack of detail, and I say that applies to all of the  maps .  Jeffrey's map of 1768, which is number 4 I think  in Dr. Farley's submission or report, Jeffrey was a  person of significance because he was Geographer to  the King and was given access to at least some of the  military and civilian survey information generated in  the American colonies.  The map incorporates  completely spurious information about northwestern  America.  But this is obviously a hand-drawn map when compared  with Bowen's map of five years earlier, is it not?  What the emphasis is, I am not aware of how that --  those heavy black lines and black strokes occurred.  I  am assuming that they were put on there either later  or even by the map-maker himself for purposes of  emphasis but some of the material is as -- is placed  on the page using apparently the same kind of  THE COURT  MR. GOLDIE 273?  Submissions by Mr. Goldie  1  2  THE  COURT:  3  4  MR.  GOLDIE  5  1  6  THE  COURT:  7  MR.  GOLDIE  8  THE  COURT:  9  10  MR.  GOLDIE  11  12  13  THE  COURT:  14  MR.  RUSH:  15  16  MR.  GOLDIE  17  THE  COURT:  18  MR.  GOLDIE  19  THE  COURT:  20  21  22  MR.  RUSH:  23  24  THE  COURT:  25  MR.  GOLDIE  26  27  28  29  30  31  32  ]  33  i  34  35  36  37  38  39  THE  COURT:  40  MR.  GOLDIE  41  THE  COURT:  42  MR.  GOLDIE  43  THE  COURT:  44  MR.  GOLDIE  45  46  47  i  techniques as Bowen.  It's hard to give much credence to this map in view  of the details shown in Bowen's map.  :  I agree, but I repeat that if -- and this map  doesn't go very far east so --  Is my note correct that this map is dated in 1768?  :  Yes, that's the --  Of course it purports to be a map of the discoveries  of de Fonte.  :  Yes.  He is trying to focus on the northwest and  all -- it is apparent that that focus leads him into  fantasy, if not imagination.  All right.  Not just de Fonte's discoveries, my lord, but several  others as well.  It is apparent from the legend.  :  Well, he traces the Russians or attempts to do so.  Yes.  :  The map was coloured.  But the legend says a general map or discoveries of  Admiral de Fonte exhibited a great probability out of  the northwest passage.  And then the explanation goes on to de Fonte's,  Russians, Juan de Fuca and Japanese.  Yes, I see that, thank you.  :  It is clear that the British were as interested in  trying to find the northwest passage as the French  were getting to the south seas and anything that came  along which related to that was a matter of some  significance as far as the British map-makers are  concerned.  But the submission I am making, and it's  one that I say is apparent, is that a reputable  map-maker seeking to apply the information he had  demonstrates that it had no relationship to reality  whereas on the east coast by this time the maps were  indicating information which was -- they were able to  transcribe that had some relationship to reality.  My lord, the transcript -- reference to transcript  269 should be to transcript 268 I believe.  Where is that?  :  Paragraph 74.  Two-six --  :  Eight.  Thank you.  :  Then we come now to a chart which does depict some  fairly accurate information about the northwest coast  and that's Captain Cook's chart which is number 21.  What it depicts as your lordship would imagine is 27389  Submissions by Mr. Goldie  1 the -- are the bearings that were taken from shipboard  2 as accurately as the instruments of the day allowed.  3 They don't really tell you anything because Cook  4 didn't go ashore to any great extent of the coast  5 beyond the immediate coast line, and the most obvious  6 thing which is shown there is the lack of knowledge  7 which resulted in him not being able to distinguish  8 Vancouver Island as an island.  The chart portrays the  9 lands immediately adjacent to Nootka Sound and in  10 other areas which are now part of the United States  11 but there is a big gap in there that he didn't have  12 any information for and there is nothing shown on the  13 map.  14 The Arrowsmith map, number 22, is one that --  15 Arrowsmith as your lordship has heard was an important  16 cartographer and produced what are generally regarded  17 as some of the best commercial maps of northwest  18 America available in Europe for the period 1790 to  19 1850.  His map of 1790 provides a summary of what was  20 known about the coast of British Columbia up to 1789.  21 West of the Rocky Mountains the old myths persist, and  22 Vancouver Island is shown as part of the Mainland.  23 And the reference to old myths, my lord, is the  24 inscription on the maps of Teguaio, Quivira and  25 Mozeemlek.  The outline of the coast is accurate where  26 bearings have been taken by the seagoing visitors  27 and -- but again nothing has been found which allowed  28 him directly to realize that there was a large island,  29 Vancouver Island.  They have got Queen Charlotte  30 Island but not Vancouver Island.  31 In paragraph 77, I say in summary it is evident  32 that even the coast line of British Columbia was  33 little known in 1763.  The maps of the day either  34 leave northwest America blank, or fill the area with  35 speculative geography taken from spurious accounts of  36 voyages.  It was not known by Britain whether British  37 Columbia was land or sea.  In that context, it is  38 improbable that the framers of the Royal Proclamation  39 intend its provisions to apply to British Columbia.  40 And of course it is equally improbable to suggest in  41 that circumstance that there were Indian peoples there  42 that were considered to be subject to the Royal  43 Proclamation or lived under the protection of the  44 Crown.  I will come to this later.  45 My lord, turning to page 29, this subsection deals  46 with the evidence of the circumstances at the time and  47 it's headed The Framers of the Royal Proclamation did 27390  Submissions by Mr. Goldie  1 not Support Expansion to the West.  The submission is  2 that if the framers of the Royal Proclamation are to  3 be taken as intending that document to apply to future  4 acquisitions in the west it must be established that  5 they anticipated western expansion.  In fact, the  6 opposite is true.  The men responsible for advising  7 the King and drafting the Proclamation were  8 mercantilists who opposed settlement beyond those  9 parts of the Colonies amenable to the import of the  10 British manufacturers.  And put the maps away for a  11 minute and turn back to the yellow binder under tab  12 V/4-78.  The definition of mercantilism is given by  13 Dr. Greenwood at page 20420 of volume 275, line 33:  14  15 "Q  What is mercantilism?  16 A Well, it was the prevailing economic theory in  17 the 18th century which contended that the state  18 should regulate the economy, often in quite a  19 detailed way, in order to increase the wealth  20 of the state.  It's obviously distinguishable  21 from laissez-faire, the theory of Adam Smith,  22 who publishes -- or published, however, only in  23 1776, as the Wealth of Nations.  So that would  24 be a general description of mercantilism."  25  26 And then he went on to the next page to link the  27 question of mercantilism with expansion, line 17:  28  29 "A Well, expansionism is simply a word that I used  30 to get at attitudes.  Dealing with whether  31 settlements should proceed west of the  32 Appalachian range or not.  33 Q  ALL right.  Perhaps you might link those two  34 things -- or discuss those two?  35 A  Yes.  Well, as I said, mercantilism had this  36 principle of colonial manufacturing should be  37 discouraged.  And it was the opinion of many  38 people -- pamphleteers in the early 1760s,  39 officials who worked and the policies that were  40 later found in the Royal Proclamation dealing  41 with Indians -- there was a considerable body  42 of opinion that expansion should not proceed  43 westward, because if it did, the people who  44 went into the western parts of North America  45 would not be able to bring their bulky goods,  46 grain, cattle, timber, et cetera, to the  47 Atlantic for export, and they would not import 27391  Submissions by Mr. Goldie  1 British manufactured goods, and they would  2 also, themselves, take up manufacturing.  3 Q  Now, the --  4 A  To the detriment to the mother country."  5  6 And tracing that through I start in paragraph 79.  7 The Board of Trade, guided by the Secretary of State,  8 was responsible for developing the policies to be  9 applied to the new acquisitions in North America.  And  10 the reference to that, my lord, is a letter from the  11 Earl of Egremont to the Board of Trade of May 5, 1763,  12 and he starts off by saying:  13  14 "His Majesty having brought the Negotiation with  15 France and Spain to a happy conclusion, and  16 having given the necessary Orders for carrying  17 into Execution several Stipulations of the late  18 Treaty, is now pleased to fix His Royal  19 Attention upon the next important Object of  20 securing to His Subjects, and extending the  21 Enjoyment of the Advantages, which Peace has  22 procured."  23  24 Now, that's started the process, that started a  25 series of processes which led in its major part the  26 one that concerns us to the Royal Proclamation.  Next  27 page 94, about a quarter of the way down the page  28 beginning with the paragraph:  "The means of arriving  29 at these desirable Ends".  3 0    THE COURT:  Yes.  31    MR. GOLDIE:  32  33 "...will perhaps be most distinctly pointed out,  34 by considering, separately, the several  35 Cessions stipulated he the Articles of Peace  36 and examining the different circumstances by  37 which each Cession becomes more or less  38 susceptible of the great Advantages of Commerce  39 and Security above mentioned.  40 North America naturally offers itself as the  41 principal Object of Your Lordships  42 Consideration upon this occasion, with regard  43 to which, I shall first obey His Majesty's  44 Commands in proposing to Your Lordships some  45 general Questions, before I proceed to desire  46 You will furnish that information, which His  47 Majesty expects from Your Lordships, with 27392  Submissions by Mr. Goldie  1 regard to the Northern and Southern Parts of  2 this Continent considered separately."  3  4 And then the questions:  5  6 "What new Governments should be established &  7 what form should be adopted for each new  8 Governments and where the Capital or Residence,  9 of each Governor should be fixed?  10  11 What Military Establishment will be sufficient?  12 What new Forts should be erected?  13  14 In what mode least Burthensome and most  15 palatable to the Colonies can they contribute  16 towards the Support of the Additional Expense?"  17  18 And then the next:  19  20 "What new Governments shall be established ...  21 what Privileges are reserved to His Majesty's  22 New Subjects by the terms of their  23 Capitulations; I therefore send Your Lordships  24 herewith the Capitulation of Quebec and  25 Montreal."  26  27 The departure from the present forms of Government  28 and so on.  And then over the page, I should start at  29 the bottom of the preceding page:  30  31 "Tho' in order to succeed effectually in this  32 Point, it may become necessary to erect some  33 Forts in the Indian Country, with their  34 consent, yet His Majesty's Justice & Moderation  35 inclines Him to adopt the more eligible Method  36 of conciliating the Minds of the Indians by the  37 Mildness of His Government, by protecting their  38 Persons and Property and securing to them all  39 Possessions, Rights and Privileges they have  40 hitherto enjoyed and are entitled to..."  41  42 Et cetera.  And then he goes on to direct them to take  43 into further objects of consideration and he becomes  44 quite specific about particular parts of the country.  45 Now, those were the general so to speak marching  46 orders given to the Board of Trade.  And then in the  47 letter sent by the Secretary of State requesting their 27393  Submissions by Mr. Goldie  1 report, he attached two enclosures embodying policy  2 proposals relevant to expansion.  One was entitled  3 "Plan of Forts and Garrisons" and a document entitled  4 "Hints", and Dr. Greenwood identified those in the  5 evidence that is noted under tab 80.  He said at  6 page -- I am at the first transcript reference under  7 tab 80 transcript volume 275 line 22:  8  9 "Q  -- on page 96 of the document under tab 30, you  10 find a reference to enclosures?"  11  12 Now, that is Egremont's letter that is being referred  13 to.  14  15 "A  Yes.  16 Q  Do you see that?  17 A  Yes.  It's written 'enclosure', but I presume  18 it should be 'enclosures'.  19 Q  Does that set out the total number of  20 enclosures that accompany this letter?  21 A  No, it does not."  22  23 And then he talks about the total number of  24 enclosures and he describes them.  And then on page --  25 the next page, line 19, after being referred to a  26 particular document:  27  2 8 "Q  And you commenced to give the -- to give the  29 title.  It's headed 'Distribution of Troops,  30 1763, Plan of Forts & Garrisons proposed for  31 the Security of North America, and the  32 Establishment of Commerce with the Indians'?  33 A  Yes.  34 Q  And you say there is no known author of that?  35 A  No.  Scholars have speculated on the author.  36 Q  Is there any consensus amongst scholars?  37 A  No, there is not.  There is consensus that it's  38 a very important military policy document, but  39 no consensus on the author."  40  41 And then he identifies on the next page the third  42 important policy document is Hints.  And then I am  43 going to come back to that in a minute.  44 Returning to the Plan of Forts and Garrisons,  45 paragraph 81.  The "Plan of Forts and Garrisons" was a  46 very important policy document, setting out five  47 objects of the military in North America.  The objects 27394  Submissions by Mr. Goldie  1 do not include the acquisition of more territory to  2 accommodate western expansion.  And under tab 81 the  3 last document after the transcript references is  4 Exhibit 1159-32a, and the document starts under the  5 heading Distribution of Troops, 1763.  And then after  6 a particular reference to individual units on the page  7 7, the author states:  8  9 "In forming the foregoing Project for a Military  10 Establishment in North America..."  11  12 And he sets out there are five objects in mind.  And  13 the -- not one of them is what might be termed  14 offensive, that is to say the acquisition of more  15 territory to accommodate western expansion.  Then  16 turning to the document entitled Hints.  The author is  17 identified by Dr. Greenwood as Mr. Henry Ellis, former  18 governor of Georgia and a very influencial advisor of  19 Egremont himself.  20 And in paragraph 83 I say it was prepared sometime  21 between November 1762 and March 24, 1763.  In Hints,  22 Ellis proposed the establishment of a western boundary  23 between the existing colonies and the Indian country  24 and expressed strong opposition to the expansion of  25 settlement into North America.  Now, this is one of  26 the documents that Egremont sent along to the Board of  27 Trade, and the text of it is found under tab 83, my  28 lord.  The particular reference is found on page 371,  29 the second to last paragraph on that page in which  30 Ellis states:  31  32 "It might also be necessary to fix upon some  33 Line for a Western Boundary to our ancient  34 provinces, beyond which our People should not  35 at present be permitted to settle, hence as  36 their Numbers increased, they would emigrate to  37 Nova Scotia, or to the provinces on the  38 Southern Frontier, where he they would be  39 useful to their Mother Country, instead of  40 planting themselves in the Heart of America,  41 out of the reach of Government, and where, from  42 the great Difficulty of procuring European  43 Commodities, they would be compelled to  44 commence Manufacturers to the infinite  45 prejudice of Britain."  46  47 As your lordship will see, the suggestions 27395  Submissions by Mr. Goldie  1 embodied in Hints were adopted generally in the  2 Proclamation, including the boundary line between  3 existing British settlement and the Indian country.  4 And that reference there is to Dr. Greenwood's  5 evidence.  6 Paragraph 85.  Williams Knox was another  7 influencial advisor on the policies embodied in the  8 Royal Proclamation.  He recommended confinement of  9 western settlement based on mercantilist arguments  10 which he developed in three memoranda sent to First  11 Minister Bute, and I won't read the transcript  12 references.  The last document under tab 85 is the  13 document in question, and the references which I won't  14 read, my lord, are on page 114, two-thirds of the way  15 down the page beginning with the words:  16  17 "Now in order to make it the interest of the  18 Colinists, to employ themselves in raising such  19 bulky Commodities..."  20  21 And that continues right on down to the end of the  22 second paragraph on page 115 where he concludes with  23 the words:  24  25 "And the Colonys Dependence on Great Britain  26 will certainly be much easier continued, if  27 their Settlements be approachable by our Ships  28 or Craft, than if they can only be come at by  29 tedious and expensive Land Expeditions."  30  31 MR. RUSH:  What's the date of this document please?  32 MR. GOLDIE:  That was — the date of the document itself I will  33 he have to obtain from my friend.  Well, I will come  34 back to that.  35 Paragraph 86.  I say Bute was one of the King's  36 principle advisors.  He agreed with the  37 representations made by Knox in his memoranda.  And  38 that appears from those two references.  39 Paragraph 87.  There is further evidence that  40 Knox's strong views opposing explanation were taken  41 into account in the policy-making process leading up  42 to the Royal Proclamation.  Lord Shelburne, President  43 of the Board of Trade, considered the original three  44 Knox memoranda along with a fourth sent to Shelburne  45 by Knox in May or June of 1763.  And that appears from  46 the secondary reference which was the Life of Knox.  47 And then paragraph 88.  The anti-expansionist 27396  Submissions by Mr. Goldie  1 policies contained in Ellis' Hints and Knox's  2 memoranda were adopted by the Board in its report to  3 the King.  In May or early June of 1763, in response  4 to Egremont's request to the Board of May 5 for advice  5 on the new acquisition John Pownall, Secretary to the  6 Board, prepared the first draft of their report.  That  7 document was referred to in evidence as the Sketch.  8 And the transcript references lead up to that and then  9 the document itself is under tab 89.  10 Now, this is regarded as probably the most direct  11 precursor of the important parts of the Proclamation  12 and I say in tab 89 -- paragraph 89:  In the sketch,  13 Pownall accepted the suggestion in Hints of a western  14 boundary at the back of the older colonies, on the  15 basis that this concept served the twin purposes of  16 protecting British mercantile interests and pacifying  17 the Indian frontier.  If your lordship would turn to  18 the second page of the sketch at 259 in the upper  19 right-hand corner, and it's the first complete  20 paragraph and it is dealing with the question of  21 Egremont's letter:  22  23 "What new government should be established in  24 the countries ceded to your Majesty in  25 America..."  26  27 And Pownall says, and I quote:  28  29 "The first consideration necessary to be  30 attended to in the formation and division of  31 the new acquisitions upon the continent of  32 America into separate governments, is, the true  33 interest and policy of this kingdom, in  34 reference to its colonies, either as that  35 interest and policy arises from their nature  36 and situation in general, or relatively to our  37 commerce and political connections with the  38 various nations and tribes of Indians now under  39 your Majesty's dominion and protection; both  40 which cases do, in the present object, by a  41 happy coincidence of circumstances, meet  42 together in the same point, and form an exact  43 union of system for as in the one case the  44 permitting the colonies, for the present at  45 least, to extend their settlements beyond the  46 heads and sources of those rivers and waters  47 which do directly discharge themselves into the 27397  Submissions by Mr. Goldie  1 Atlantick Ocean or Gulph of Mexico, would  2 probably induce a necessity for such remote  3 settlements (out of the reach of navigation) to  4 ingage in the production and manufacture of  5 those articles of necessary consumption which  6 they ought, upon every principle of true  7 policy, to take from the mother country, and  8 would also give rise to a separation of  9 interests and connections, in other points, not  10 consistent with that policy, so in the other  11 case, such settlements would not be made or  12 colonizing allowed without a manifest breach of  13 our general engagements with the Indians which  14 would naturally excite in them a jealousy and  15 disgust which that might prove of fatal  16 consequence."  17  18 So that calls for Pownall's description of two  19 things constituting a happy coincidence, placating the  20 Indians and keeping the colonies in a state that  21 coincided with what he thought was in the true  22 interest of the Kingdom.  And of course the submission  23 is that that coincidence completely negates the  24 proposition that the Royal Proclamation was intended  25 to stretch across the continent to British Columbia.  26 Now, in the final form of the Board's report sent  27 to the King in June, 1763, Pownall added a long  28 section detailing the advantages of the cessions as  29 requested by Egremont.  No mention was made of  30 expansion of settlement west into North America.  To  31 the contrary, the Board advocated channelling any  32 increase in the population north and south along the  33 seaboard.  Didn't succeed in populating Nova Scotia,  34 but there are references there to Dr. Greenwood and  35 to -- and the final -- now, this is the report of June  36 8, 1763 and it's the last document under tab 90, and  37 it's headed Document 11 and there is a short covering  38 letter which your lordship will see at the top and  39 then the main report is in the form of an enclosure,  40 and my reference, my lord, is over on the next page  41 and it's the last complete paragraph on the left-hand  42 column beginning with the words "another advantage".  43  44 "Another advantage attending the late Treaty is  45 the secure settling of the whole Coast of North  46 America, as its produce may invite, or  47 Convenience for Settlement may offer, from the 2739?  Submissions by Mr. Goldie  1 mouth of the Mississippi to the boundaries of  2 the Hudson's Bay settlements."  3  4 I just pause there to note that in the mind of the  5 Board the whole Coast of North America for them was  6 the eastern seaboard.  7  8 "...with the whole Variety of Produce which is  9 capable of being raised in that immense Tract  10 of Sea Coast, either by the Industry of  11 Emigrants from Europe, or from the Overflowing  12 of Your Majesty's ancient Colonies - previous  13 to the late War.  Nothing is more certain than  14 that many of Your Majesty's ancient colonies  15 appeared to be overstocked with Innhabitants,  16 occasioned partly from an extremely increasing  17 Population in some of those colonies, whose  18 Boundaries had become too narrow for their  19 Numbers, but chiefly by the Monopoly of Lands  20 in the Hands of Land Jobbers from the  21 extravagant injudicious Grants by some of Your  22 Majesty's Governors, whereby a great many of  23 Your Majesty's industrious Subjects were either  24 forced into Manufacturers being excluded from  25 planting by the high Price of Land (a Situation  26 which they otherwise would have preferred) or  27 forced to emigrate to the other Side of the  28 Mountains, where they were exposed to the  29 irruptions of the Indians as well as the  30 Hostilities of the French.  And though, on the  31 one Hand, Your Majesty's Province of Nova  32 Scotia according to its true and just  33 Boundaries, and on the other, that of Georgia,  34 would have contained many more of your  35 Majesty's Subjects..."  36  37 And so on.  Now, the whole point in my submission is  38 that one of the advantages which was being pointed out  39 there is that Nova Scotia and Georgia would be able to  40 take the surplus of the population and no mention was  41 made of expansion of settlement west into North  42 America.  43 And paragraph 91.  Lord Shelburne, President of  44 the Board of Trade, supervised the drafting of the  45 June 8, 1763 report to the King.  His ideas were  46 reflected in the section on advantages, which ran to  47 over 2,000 words.  Shelburne's public statements on 27399  Submissions by Mr. Goldie  1 the recent acquisition in North America indicate he  2 was not an expansionist.  The transcript references  3 are to Dr. Greenwood's introduction that Shelburne's  4 statements -- and then there is a typescript of  5 Shelburne's notes for a speech which is Exhibit  6 1164-235, and the particular reference that I make and  7 it's only the last page, my lord, what he does is to  8 sort of draw up almost a balance sheet of pluses and  9 minuses in the -- in relation to the trade which  10 becomes available, and he says in the last page  11 that -- and he is now talking about the Sugar  12 Colonies:  13  14 "...wherever sugar grows, Population decreases,  15 and that our Sugar Colonies weaken and  16 depopulate our Mother Country -- Sugar  17 requiring  Moist & Heat are the causes of  18 Putrefaction.  19 On the contrary the Northern Colonies  20 increase Population and of course the  21 consumption of our Manufacturers, pay us for  22 them by their Trade with Foreigners and thereby  23 giving employment to millions of Inhabitants in  24 Great Britain."  25  26 The emphasize that I make, and it's throughout his  27 speech, is to the English manufacturers and the  28 colonial produce of food and raw materials.  Then I  29 note British policy against expansion following the  30 Proclamation, and I say the anti-expansionist policy  31 embodied in the Royal Proclamation prevailed I say in  32 British circles long after 1763.  Two months after the  33 Proclamation was issued, the King instructed Murray,  34 Governor of the newly formed colony of Quebec, to  35 refrain from assenting to laws which would encourage  36 westward expansion.  As I have said a minute ago, the  37 whole rationale for manufacturing in North America  38 being thought to be distance from seaboard, and that's  39 under tab 92 paragraph 63, these are the royal  40 instructions to Murray.  41  42 "You are to use your best Endeavours in  43 improving the Trade of those Parts, by settling  44 such Orders and Regulations therein, with the  45 advice of Our said Council, as may be most  46 acceptable to the Generality of the  47 Inhabitants.  And it is Our express Will and 27400  Submissions by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Pleasure, that you do not, upon any Pretence  whatever, upon pain of our highest Displeasure,  give your Assent to any Law or Laws for setting  up any Manufacturers and carrying on any  Trades, which are hurtful and prejudicial to  this Kingdom; and that You do use your utmost  Endeavours to discourage, discountenance and  restrain any Attempts which may be made to set  up such Manufacturers, or establish any such  Trades."  Now, these were standard instructions which were  given to the Governors of the Royal Colonies in the  years 1761 to 1763.  And the evidence -- that's the  evidence of Dr. Greenwood under tab 93.  And then in 1766, the Secretary of War, Mr.  William Wildman, prepared a document setting out his  "thoughts upon North America".  And in referring to  the policy in the Royal Proclamation of forbidding  British subjects to settle beyond the Appalachian  line, said of the policy that it was founded on the  protection of Britain's mercantile instruments.  THE COURT:  Interests.  MR. GOLDIE:  And under the tab there is the description of who  Mr. Wildman was and then the last document is taken  from Exhibit 1164-247, one of Dr. Greenwood's primary  references, and the reference that I have in mind, my  lord, is the last paragraph on the first page  continuing over to the end on the second page  beginning with the words:  "The policy of forbidding British Subjects to  settle beyond the heads of those rivers which  run into the Atlantic Ocean is founded on this  consideration that as the North American  Productions are weighty and of great bulk,  water carriage is extremely necessary to convey  them to the Seaside for Exportation and to  something to the inland country."  THE COURT: "Reconvey".  MR. GOLDIE: Beg your pardon, my lord?  THE COURT: "Reconvey ".  MR. GOLDIE: Yes:  " the inland country of the manufacturers  of Great Britain the convenience without which 27401  Submissions by Mr. Goldie  1 such settlements can have little or no  2 communication with the Mother Country or be of  3 much utility to it."  4  5 That's an echo of the -- what benefit can these  6 colonies place, what benefit can they confer upon the  7 Mother Country.  8 And then paragraph 95, I note:  In April of 1772  9 the Board of Trade responded to Benjamin Frankin's  10 petition for a grant of land on the Ohio River to  11 found the colony of Vandalia.  That colony was well  12 inland and the point that we note here is that the  13 Board of Trade's response revealed a strong and  14 continuing opposition to western expansion.  And that  15 is evident in the material under tab 95, and I refer  16 to the last paragraph on the left-hand column in the  17 extract paragraph number 3, I won't read it, but it  18 records the Board's opposition to the whole scheme and  19 the reason for it being -- that they would lie outside  20 the reach of the trade and commerce of the Kingdom.  21 Now, that scheme was, as it so happens, was  22 approved by the Privy Council but it came to not by  23 reason of the beginning of the American Revolution.  24 Now I turn to the Treaty of Stanwix and the  25 Quebec Act, and we do so, my lord, because as we  26 understand it the Plaintiffs rely on the Treaty of  27 Stanwix and the Quebec Act of 1774 as examples of  28 British expansionist policy following the  29 Proclamation.  30 THE COURT:  I think, Mr. Goldie, we'll take the morning  31 adjournment before you start that section.  32 MR. GOLDIE:  Thank you, my lord.  33 THE REGISTRAR:  Order in court.  Court stands adjourned for a  34 short recess.  35  36 (PROCEEDINGS ADJOURNED AT 11:00 a.m.)  37  38 I hereby certify the foregoing to  39 be a true and accurate transcript  40 of the proceedings transcribed to  41 the best of my skill and ability.  42  43  44  45 Tannis DeFoe,  46 Official Reporter,  47 UNITED REPORTING SERVICE LTD. 27402  Submissions by Mr. Goldie  1 (PROCEEDINGS RECONVENED AT 11:15 A.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  Thank you, my lord.  6 I was about to deal with the Treaty of Stanwix and  7 the Quebec Act on the basis that, as we understand it,  8 that the plaintiffs rely upon these two instruments as  9 examples of British expansionist policy following the  10 Proclamation.  And in my submission, a review of the  11 historical record indicates that neither the treaty  12 nor the Act can be so construed.  13 Now, the treaty of -- by the Treaty of Stanwix in  14 1768, Sir William Johnson, Superintendent of Indian  15 Affairs in North America (Northern Department)  16 obtained a surrender from the Six Nations of a vast  17 tract of land in the Ohio country which stretched from  18 the Appalachian Mountains almost to the Mississippi  19 River.  That treaty appears to have been negotiated by  20 Johnson without consulting British authorities and  21 without their approval.  22 That -- the Board of Trade was asked by the King  23 to comment upon the Treaty of Stanwix, and under tab  24 4-97 is found the first page of a communication from  25 the Board of Trade to the King after reviewing the  26 Treaty of Stanwix.  The date of it is April the 25th,  27 1769.  My lord, the first comment that I wish to draw  28 your lordship's attention to is in the first  29 paragraph, the second to last sentence beginning with  30 the semicolon and the words "As we humbly conceive."  31 And it reads:  32  33 And as we humbly conceive, that the Proceedings  34 of your Majesty's Superintendents in this  35 Business do, each, relate to Bodies of Indians,  36 having separate and distinct interests, and  37 that such proceedings have, as far as they have  38 hitherto gone, been carried on without any  39 inter-Communication or Concurrence.  We humbly  40 crave leave to consider the Transactions.  41  42 And then they go into the -- what was done on each  43 case.  But the excerpt in the -- in the yellow binder  44 doesn't carry with it the full implication of the  45 Board's unhappiness over what had been done by the  46 superintendent, and I'm going to read from a couple of  47 additional pages that are not in the yellow binder. 27403  Submissions by Mr. Goldie  1 Page 159 they say --  2 THE COURT:  Sorry, is there an exhibit number for this?  3 MR. GOLDIE:  Yes.  It's Exhibit 1164- 243.  4 THE COURT:  Yes.  Thank you.  5 MR. GOLDIE:  And I can have these additional pages later added  6 to the exhibit.  7 THE COURT:  Thank you.  8 MR. GOLDIE:  The Board refers to the expectations of the Indians  9 as having been aroused despite the clear instructions  10 of the King.  At page 159:  11  12 That the Indians have been suffered to  13 entertain expectations, and thereupon to ground  14 conditions acquiesced in by your Majesty's  15 Superintendent which appear to us to have  16 relation only to the plan proposed in 1764,  17 which plan has been since laid aside, and do  18 not correspond with that, which your Majesty  19 has now adopted, and which has been so fully  20 explained in your Majesty's Instructions.  21 The stipulations have been --  22  23 This is page 160:  24  25 The stipulations have been made, by which  26 particular bodies and tribes of Indians have  27 been excepted out of the General Conditions of  28 the Treaty:  and lastly,  29 That the claims and interests of private  30 persons, not stated to, or approved by your  31 Majesty, have been allowed to mix themselves in  32 this Negotiation, and to be introduced, not as  33 propositions submitted to your Majesty's  34 Determination, but as Rights derived from the  35 Indians, your Majesty's acquiescence in which  36 is demanded by them, as a condition of the  37 Treaty.  38  39 And they said:  40  41 It is ... unnecessary for us to recite all  42 the passages in the minutes of the Proceedings  43 with the Indians at Fort Stanwix, that verify  44 the foregoing observations; the Facts will be  45 found in the Talks of the Chief Speakers on the  46 part of the Indians, made at their Conferences  47 with Sir William Johnson. 27404  Submissions by Mr. Goldie  1 And there are other provisions, but it is on that  2 basis that I submit that the treaty was negotiated by  3 Johnson without consulting British authorities and  4 without their approval.  5 Now, the Quebec Act of 1774 revoked the  6 application of the Royal Proclamation to Quebec, and  7 enlarged the colony towards Labrador on the east and  8 the Ohio and the Mississippi Rivers to the southwest.  9 It also established civil jurisdiction in those areas.  10 Nonetheless, the legislative history of the Quebec Act  11 indicates that it was consistent with the  12 "containment" policy of the Royal Proclamation.  13 My lord, I wish to correct a transcript  14 reference.  The second line, transcript 277 page 2057,  15 it should be 20577.  Just add an additional seven  16 there.  17 Now, the legislative history that I refer to is  18 indicated in the following paragraphs:  19 Paragraph 99.  Lord Hillsborough (who had  20 succeeded Shelburne as President of the Board of  21 Trade), objected to the extension of Quebec's  22 boundaries and the granting of civil jurisdiction in  23 that area because both steps seemed to foreshadow the  24 movement of settlers into the northern part of the  25 Reserve.  And Dartmouth, Secretary of State for the  26 American Colonies, assured Hillsborough that his  27 concerns were unfounded and that the British Crown did  28 not intend by the Quebec Act to extend settlement to  29 the west.  30 Now, first I refer to the -- by way of background  31 to the Quebec Act itself, and that's under tab 95, and  32 the relative provision is found at the bottom of page  33 402.  They recital begins with the words "Whereas the  34 provisions made by the said Proclamation".  35 THE COURT:  Sorry, I haven't got to that.  Tab 95?  36 MR. GOLDIE:  Yes.  Four dash -- I beg your pardon, it should  37 be -- no, I have it under 95.  Does your lordship have  38 95?  39 THE COURT:  95 is Report of the Lords Commissioners for Trade  40 and Plantations on the Petition.  It's a two-page  41 document.  42 MR. GOLDIE:  Well, that sounds like the Vandalia matter.  43 THE COURT:  Yes, it is.  That's all I have under tab 95.  44 MR. GOLDIE:  Well, if your lordship would look under 98.  45 THE COURT:  Unless — is it quoted in these archives?  46 MR. GOLDIE:  Yes, it is.  47 THE COURT:  All right. 27405  Submissions by Mr. Goldie  1 MR. GOLDIE:  The upper right-hand corner it should be Exhibit  2 1166, footnote number 261.  3 THE COURT:  Yes, I have it.  4 MR. GOLDIE:  Yes.  If your lordship would go over the page, this  5 is an extract from the Quebec Act.  6 THE COURT:  Yes, all right.  7 MR. GOLDIE:  And what I'm referring to is the last paragraph on  8 that page, which begins with the words:  9  10 And whereas the Provisions, made by the said  11 Proclamation, in respect to the Civil  12 Government of the said Province of Quebec and  13 the Powers and Authorities given to the Govenor  14 and other Civil Officers of the said Province,  15 by the Grants and Commissions issued in  16 consequence thereof, have been found, upon  17 Experience, to be inapplicable to the State and  18 Circumstances of the said Province, the  19 Inhabitants whereof amounted, at the Conquest,  20 to above Sixty-five thousand Persons professing  21 the Religion of the Church of Rome, and  22 enjoying an established Form of Constitution  23 and System of Laws, by which their Persons and  24 Property had been protected, governed, and  25 ordered, for a long Series of Years, from the  26 First Establishment of the said Province of  27 Canada; be it therefore further enacted by the  28 Authority aforesaid, That the said  29 Proclamation --  30  31 And that refers back to the Proclamation of the 7th of  32 October, 1763.  33  34 -- So far as the same relates to the said  35 Province of Quebec, and the Commission under  36 the Authority whereof the Government of the  37 said Province is at present administered, and  38 all and every the Ordinance and Ordinances made  39 by the Governor and Council of Quebec for the  40 Time being, relative to the Civil Government  41 and Administration of Justice in the said  42 Province, and all Commissions to Judges and  43 other Officers thereof be, and the same are  44 hereby revoked, annulled and made void, from  45 and after the First Day of May, 1775.  46  47 Then there are the other provisions which 27406  Submissions by Mr. Goldie  1 extended the bounds of the Province of Quebec, as  2 established in 1763, substantially westward so that it  3 reached right down into the Ohio country.  And that  4 provoked, when that Act was in the Bill stage,  5 provoked some concerns which I now refer to and should  6 be under tab 99.  7 THE COURT:  In this tab does it describe the boundaries?  8 MR. GOLDIE:  Not in this — oh, I'm sorry, yes, at the top of  9 page 402, which was the page that I began to read  10 from.  11 THE COURT:  Oh yes.  12 MR. GOLDIE:  And I'll be coming back to that, my lord, because  13 that's the -- it's that description which subsequently  14 led to the dispute between Ontario and Manitoba over  15 the boundary.  16 And the relevant parts begin with the words:  17  18 ...and from thence along the said Northern and  19 Western Boundaries of the said Province --  20  21 That's of Pennsylvania.  22  23 -- until the said Western Boundary strike the  24 Ohio:  But in case the said Bank of the said  25 Lake shall not be found to be so intersected,  26 then following the said Bank until it shall  27 arrive at that Point.  28  29 And so on and so forth.  30  31 ...and thence, by a right Line, to the said  32 Northwestern Angle of the said Province; and  33 thence along the Western Boundary of the said  34 Province, until it strike the River Ohio:  and  35 along the Bank of the said River, Westward, to  36 the Banks of the Mississippi, and Northward to  37 the Southern Boundary of the Territory granted  38 to the Merchants Adventurers of England.  39  40 And that's the Quebec that existed between 1774  41 and the conclusion of the American Revolution.  42 And it's the one that is outlined in the map, my  43 lord, that -- identified -- the fourth one.  It's  44 identified with the words 1774 and it extends right  45 down into the Ohio and then up the Mississippi and  46 then that was cut back following the Treaty of Paris  47 following the conclusion of the American Revolution. 27407  Submissions by Mr. Goldie  1 THE COURT:  But if it extended northward to the territory  2 granted to the company of Adventurers trading to  3 Hudson's Bay, then it -- it interrupted any corridor  4 through which the Royal Proclamation could have flowed  5 into the west.  6 MR. GOLDIE:  Yes.  And I come to that.  There are several —  7 several matters which fall into that category.  One of  8 them is the description which I've just read.  The  9 other is the basis upon which the northern boundary of  10 the United States was fixed, and in the Treaty of  11 Paris following the Revolution.  12 THE COURT:  All right.  13 MR. GOLDIE:  And if your lordship would turn to the yellow  14 binder under tab 99, there should be a transcript  15 reference to Volume 277, page 20578.  16 THE COURT:  99?  17 MR. GOLDIE:  Yes.  18 THE COURT:  Yes.  19 MR. GOLDIE:  And the question at line seven asks:  20  21 Q  Now, the effect -- without going into the  22 specific provisions of the Quebec Act,  23 but the effect was to enlarge  24 substantially the Colony of Quebec; is  25 that correct?  26 A  Yes.  Towards Labrador and especially  27 towards the Ohio and the Mississippi,  28 yes.  2 9 Q  And was this commented upon by the Earl  30 of Hillsborough?  31 A  Yes, it was.  32 Q  And did he raise objections, and were  33 those observations answered, and if so  34 can you make reference to a document?  35 A  Yes.  Hillsborough objected that the  36 extension of the boundaries plus the  37 granting of civil jurisdiction in the  38 area of the northern part of the reserve  39 seemed to imply that settlers would be  40 going there, because there would be civil  41 jurisdiction for the first time.  42  43 Now, if I may pause there, my lord, the -- the  44 jurisdiction in the Indian reserve created by the  45 Royal Proclamation was military in character and  46 that's the -- that's the antecedent to this comment;  47 there would be civil jurisdiction for the first time. 2740?  Submissions by Mr. Goldie  1 And continuing at line 24:  2  3 -- These objections were laid to rest in a  4 letter from Dartmouth, Lord Dartmouth --  5 Q  Under tab --  6 A  -- to Hillsborough.  7 Q  262?  8 A  262.  9 Q  Yes.  10 A  Dated 1st of May, 1774.  I consulted the  11 original and used that, but have filed  12 the shortened copy.  Should I read that?  13 Q  Yes, please.  14 A  15 "To Lord Hillsborough.  My Dear Lord.  16 Mr. Knox has stated to me your  17 lordship's two objections to the  18 Canada Bill which I propose to lay  19 before the House of Lords tomorrow."  20  21 There is an interjection by Dr. Greenwood:  22  23 That is the bill, not the objections.  24  25 "And I have communicated them to the  26 Cabinet, who are unanimously of  27 opinion that the extension of the  28 Province to the Ohio and Mississippi,  29 is an essential and very useful part  30 of the Bill, it provides for the  31 establishment of civil government  32 over many numerous settlements of  33 French subjects but does by no means  34 imply an intention of further  35 settling the Lands included within  36 this extension, and if it is not  37 wished that British Subjects should  38 settle that Country nothing can more  39 effectually tend to discourage such  40 attempts, which in the present state  41 of that county, your lordship knows  42 very well, is impossible to prevent.  43 Your objection to the clause allowing  44 a change of tenure their lordship's  45 thought proper to come into and was  46 accordingly struck out of the bill"  47 27409  Submissions by Mr. Goldie  1 That's the second and irrelevant objection.  So  2 of his two objections, the relevant one was noted and  3 he was assured that there would not be further  4 extension westward.  And in my submission, that  5 negates the proposition that the Quebec Act, in  6 extending the boundaries of Quebec west and south into  7 part of the so-called Indian reserve, constituted an  8 act of expansionism which can be pointed to as  9 justifying the westward extension of the Royal  10 Commission -- Royal Proclamation.  11 THE COURT:  What do you think he means by "numerous settlements  12 of French subjects"?  13 MR. GOLDIE:  I think he is referring there, my lord, to the  14 French trading posts which were considerably to the  15 west of the original boundaries of Quebec.  Your  16 lordship may recall that the original boundaries were  17 almost along the -- well, they turn sharply eastward  18 at the end of Lake Nipissing.  19 THE COURT:  He must mean former French subjects, does he?  20 MR. GOLDIE:  Well yes, that's correct.  The French speaking.  21 THE COURT:  All right.  22 MR. GOLDIE:  But all of the French forts which were still  23 inhabited -- former French forts which were still  24 inhabited were -- extended down into the Ohio.  25 THE COURT:  Yes.  But that had been — they had been British  26 subjects since 1763?  27 MR. GOLDIE:  They were by this time, yes, that's correct.  28 And what's more to the point, he -- I shouldn't  29 say more to the point, but it is equally relevant, is  30 that the interjection he makes at line nine, "your  31 lordship knows very well, is impossible to prevent."  32 And that is -- attempts to discourage settlement in  33 that country.  And there had been British settlement  34 from the old colonies.  35 This extension of the Province of Quebec is  36 regarded by some historians as one of the reasons for  37 the outbreak of the American Revolution, because it  38 seemed to place in the path of westward settlement a  39 civil jurisdiction which was catering to the Roman  40 Catholic religion, and feelings ran very high in those  41 days on that point.  42 Now, I make reference in the next paragraph to  43 the instructions which were sent to Governor Carleton  44 on the 3rd of June, 1775.  And I say:  Furthermore,  45 after the passage of the Quebec Act the imperial  46 instructions to Governor Carleton of 3 June 1775 were  47 redrafted to take account of that Act; the 27410  Submissions by Mr. Goldie  1 instructions prohibited settlement beyond the  2 boundaries of the original limits of Quebec.  3 And the instructions are found under tab 100 --  4 or that portion of the instructions which are  5 relevant.  And the one I refer to is paragraph 31:  6  7 The institution of inferior Judicatures  8 with limited Jurisdiction in Criminal and Civil  9 Matters for the Illinois, Poste St. Vincenne,  10 the Detroit, Missilimakinac, and Gaspee has  11 been already pointed out, and the Appointment  12 of a Superintendent at each of these Posts is  13 all, that is further necessary for their Civil  14 concerns; But it will be highly proper, that  15 the limits of each of those Posts, and of every  16 other in the interior Country should be fixed  17 and ascertained; and that no settlement be  18 allowed beyond those Limits; seeing that such  19 Settlements must have the consequence to  20 disgust the Savages; to excite their Enmity;  21 and at length totally to destroy the Peltry  22 Trade, which ought to be cherished and  23 encouraged by every means in your Power.  24  25 And in paragraph 101:  Of the contemporary  26 authors supporting expansion westward, only one  27 advocated expansion west of the Mississippi.  The  28 transcript references are noted.  The document itself  29 is omitted, my lord, because it was almost totally  30 illegible when the witness was giving evidence and  31 it's certainly no better now, but the evidence -- the  32 transcript evidence, I think, is sufficiently clear.  33 And then in paragraph 102:  In summary, there is  34 no evidence in the historical record to support the  35 view that the framers of the Royal Proclamation  36 intended that instrument to anticipate settlement west  37 of the Appalachian line.  To the contrary, it was  38 designed to prevent such settlement.  39 And the reference there again is to the -- to the  40 transcript.  And I won't read that, but the question  41 was put to Dr. Greenwood at -- under tab 102, the page  42 20560, transcript 277, line ten:  43  44 Q  Did you find any explicit evidence, and  45 that's what I meant by the word positive?  46 A And this is in the documents outlined by  47 the Proclamation? 27411  Submissions by Mr. Goldie  1 Q  Yes.  2 A  I guess the answer is no, but with a  3 qualification.  There is a letter from  4 Amherst to Egremont, I believe, in 1762  5 suggesting interior colonies and there  6 are one or two other documents of the  7 same nature which were ignored by the  8 Board of Trade.  Subject to that caveat  9 the answer is no.  10  11 Then the next part that I come to, my lord, is  12 construction of the terms of the Royal Proclamation.  13 And the first part that I address is the proposition  14 that the Reserve has definite boundaries and that  15 these do not include British Columbia.  16 Paragraph 103.  The defendant province submits,  17 and the historical record demonstrates, that the  18 framers of the Royal Proclamation intended the reserve  19 to have fixed, contiguous boundaries.  To the east,  20 the boundary was the Appalachian Line; to the south,  21 the northern limits of the colonies of East and West  22 Florida; to the west the Mississippi; and to the  23 north, Rupert's land.  24 And I start with the instructions sent to the  25 British negotiator in Paris dated September 4th, 1762,  26 directed him to ensure that the article of the Treaty  27 dealing with the international frontier was to be  28 written in such clear and explicit terms that it could  29 form no basis for misunderstanding or a French claim  30 to any territory east of the Mississippi River.  31 And I refer to the material under tab 104, and  32 this constitutes the instructions that were sent to  33 the plenipotentiary who was the chief negotiator for  34 the British in the Treaty of Paris.  And the reference  35 I want to make is to the second page opposite the map  36 that is shown there, and beginning with the words  37 about half-way down, "Our will and pleasure":  38  39 Our will and pleasure is that you exert your  40 utmost attention with regard to this article  41 which is to be treated in such clear and  42 explicit terms as shall render it incapable of  43 any misconstruction.  And as shall for the  44 future, remove even a pretence on the part of  45 France to claim either as part of Louisiana; or  46 under any other denomination whatsoever.  47 27412  Submissions by Mr. Goldie  1 Now, the -- probably the next page of that should  2 have been in there, but it is reflected in the article  3 of the treaty which I'll come to in a minute.  But at  4 paragraph 105, I note Chief Justice Marshall's summary  5 of the effect of the treaty and he stated, and I  6 quote:  7  8 Great Britain, on her part, surrendered to  9 France all her pretensions to the country west  10 of the Mississippi.  11  12 And he concludes by saying:  13  14 She surrendered all right to acquire the  15 country; and any other attempt to purchase it  16 from the Indians would have been considered and  17 treated as an invasion of the territories of  18 France.  19  20 And that's found -- the relevant part of the  21 treaty of -- the relevant part of the judgment is  22 found under tab 105.  23 Now, I want to -- perhaps I ought to note for  24 your lordship's book there, the words of the Treaty of  25 Paris itself:  It's -- if your lordship would go back  26 to tab 4-5.  It's the third one from the --  27 THE COURT:  Yes, I have it.  28 MR. GOLDIE:  — from the top, and it's Exhibit 1159-3.  2 9    THE COURT:  Yes.  30 MR. GOLDIE:  And this is in relation to the instructions that  31 were given to ensure that there should be no  32 misunderstanding over the limits between the French  33 and British possessions.  34 THE COURT:  These are instructions, are they?  35 MR. GOLDIE:  No.  This is the treaty itself but it's in relation  36 to how -- I want to turn to the treaty to show how the  37 instructions were carried out.  38 Article 1 is a statement that:  39  40 There shall be a Christian universal and  41 perpetual peace as well by sea as by land, and  42 a sincere and constant friendship shall be  43 re-established between their Britanic most  44 Christian Catholic and most faithful Majesties  45 and between their heirs and successors,  46 kingdoms, dominions, provinces, et cetera.  47 27413  Submissions by Mr. Goldie  1 And then Article 7 introduced the boundary between  2 the British and the French in North America with these  3 words:  4  5 In order to re-establish peace on solid and  6 durable foundations and to remove forever all  7 subject of dispute with regard to the limits of  8 the British and French territories on the  9 continent of America, it is agreed that, for  10 the future, the confines between the dominions  11 of his Britanic Majesty and those of his most  12 Christian Majesty in that part of the world  13 shall be fixed irrevocably by a line drawn --  14  15 And so on.  16 And in my submission, the language is emphatic  17 and reflects the instructions to -- that there shall  18 be no misunderstanding on the westward limit, which  19 was to be the limit between what France was retaining,  20 namely Louisiana, and what was ceded to the British,  21 namely Canada or New France.  22 Now, I go back to paragraph 106.  The plaintiffs  23 argue that the Royal Proclamation applied to Indians  24 throughout the continent of North America, and that  25 the Reserve was thus open-ended.  They reach this  26 conclusion on the basis that the Proclamation must be  27 interpreted with a "purposive approach" and in light  28 of the mischief that instrument was designed to  29 address.  The defendant province agrees with the  30 plaintiffs' characterization of that mischief as the  31 weakening of the British alliance with the Six Nations  32 and their allies, which was detrimental to the  33 position of the English in the continuing hostilities  34 with France in the 1750s and 1760s.  As the plaintiffs  35 say, the general uprising of the numerically superior  36 Indians of the Ohio country would have destroyed in a  37 very short time all of the military gains the British  38 had made during the war.  39 Now, I'm paraphrasing what I understand to be the  40 plaintiffs' argument there.  I don't necessarily agree  41 with the conclusion they reach, I simply say that that  42 is the strongest position which could be taken on  43 behalf of the plaintiffs.  44 Now, paragraph 107.  A review of the working  45 papers of the framers of the Royal Proclamation  46 demonstrates that this problem of colonial security,  47 which the framers addressed in setting up a reserve, 27414  Submissions by Mr. Goldie  1 was considered to extend only as far west as the  2 Mississippi River and as far north as Rupert's Land.  3 The Indians of Western Canada, and in particular those  4 of British Columbia, posed no threat to British  5 security in 1763.  And I just interject there, my  6 lord, that -- and remind you of the words in the  7 Proclamation itself.  What I was referring to is the  8 preamble at "S" which reads as follows:  9  10 And whereas it is just and reasonable and  11 essential to our interest and the security of  12 our colonies.  13  14 That's the introduction to the so-called Indian  15 Provisions of the Royal Proclamation.  16 Now, going back to my argument, I say, and I  17 repeat, the Indians of Western Canada, and in  18 particular those of British Columbia, posed no threat  19 to British security in 1763.  It is not surprising,  20 then, that the Reserve contemplated by the framers of  21 the Royal Proclamation was confined to territory  22 adjacent to the existing British colonies.  23 And I want to interject something here which is  24 not in my written argument, but I don't wish it to be  25 overlooked at this point, and that is, that the treaty  26 was an international instrument which defined  27 England's relationship with two of the most important  28 world powers; France and Spain.  The Royal  29 Proclamation gave domestic effect to the treaty's  30 provisions, and I say that it would have been a breach  31 of the solemn undertakings in the treaty --, and I  32 particularly referred to Article 1 -- as well as  33 demonstrating the failure of the British negotiators  34 to carry out their instructions, if the Royal  35 Proclamation is to be interpreted as extending into  36 lands belonging to France.  37 Now, as I understand the plaintiffs' position,  38 they say, "Well, we don't say the Royal Proclamation  39 crosses the Mississippi into what was Louisiana, we  40 say there is a little gap through which it extended  41 into the Canadian territory."  But at the same time,  42 they say that territory was part of France which  43 isn't -- so that we have the peculiar circumstances of  44 the Proclamation stopping at the Mississippi in one  45 circumstance and going around the top of it for  46 another.  47 THE COURT:  But the plaintiffs' position is that that was ceded. 27415  Submissions by Mr. Goldie  1  MR.  GOLDIE  2  THE  COURT:  3  MR.  GOLDIE  4  5  6  7  8  1  9  10  THE  COURT:  11  12  13  14  15  MR.  GOLDIE  16  17  18  19  20  21  THE  COURT:  22  23  24  25  26  27  28  29  30  31  MR.  GOLDIE  32  THE  COURT:  33  34  35  MR.  GOLDIE  36  THE  COURT:  37  38  MR.  GOLDIE  39  THE  COURT:  40  41  MR.  GOLDIE  42  THE  COURT:  43  MR.  GOLDIE  44  THE  COURT:  45  MR.  GOLDIE  46  47  THE  COURT:  :  They say that was ceded.  Yes.  :  That's correct.  But what I am saying is that if  the Royal Proclamation is to be taken as intending to  apply to all future possessions, then it is saying --  in my submission, it is saying it extends across the  whole of North America and that, I say, would be a  domestic breach of an international undertaking.  Now, referring to --  I just want to see if I can think about it, a way of  putting that.  Are you saying that if it was -- if the  boundary between France and Britain did not extend  north of the headwaters of the Mississippi, then it  wasn't ceded, Western Canada wasn't ceded?  :  Oh, I don't -- I don't say Western Canada was  ceded.  I mean, I take issue with them initially on  that, right off the bat.  I say that the boundaries of  old Canada or New France extended around the  headwaters of the St. Lawrence but it -- not  indefinitely into the -- into the western country.  Well, I understood your friend's argument to be that  because -- amongst other things, expiration of La  Verendrye and because of the declaration of  sovereignty at Sault St. Marie and no doubt other  reasons, the territory to the east of -- sorry, to the  west of the Great Lakes was part of what was ceded to  France when they gave up all of its possessions in  North America except Louisiana, and therefore was part  of British territory into which the Royal Proclamation  could flow.  :  Yes, that's my understanding of their argument.  Yes.  And you say that it -- and I would go the next  step then and say, if that is so then Western Canada  became British.  :  Yes.  In their concept.  Yes.  And the Mississippi is relevant for that  purpose.  :  Yes.  North of the Mississippi is relevant for that  purpose?  :  Yes.  All right.  :  But that only works if there is a gap.  North of the Mississippi and south --  :  North of the Mississippi and south of Rupert's  Land.  South of Rupert's Land, yes, all right.  And if the 27416  Submissions by Mr. Goldie  maps are right and the 49th Parallel, which your  friend doesn't agree with, but if that is the boundary  then there is a gap between the headwaters of the  Mississippi and the 49th Parallel; a narrow one but a  gap.  GOLDIE:  It will be my submission that when you look at the  documents, nobody at that time thought there was a  gap.  COURT:  Yes.  Right.  GOLDIE:  And I am not relying just upon maps when I say  that.  COURT:  But you say now that what is now Western Canada was  not ceded by --  GOLDIE:  No.  COURT:  North of the Mississippi and south of Rupert's Land,  or do you say it wasn't ceded because it was already  part of Rupert's Land?  GOLDIE:  It was already part of Rupert's Land.  COURT:  Yes.  GOLDIE:  The British never acknowledged that the French had  any rights in Rupert's Land.  They had insisted in  1713 that Rupert's Land was restored, not ceded.  COURT:  Yes.  GOLDIE:  And the point that I made yesterday was that the  whole British practice was to treat the territory that  was identified as the watershed of the Hudson's Bay as  accruing to the Hudson's Bay Company and not becoming  British dominions outside that colony.  COURT:  Yes.  All right, thank you.  GOLDIE:  Now at this point, my lord, I am back to my summary  of my argument, and at paragraph 108.  And the thrust  of my submission here is that if one looks at the  circumstances which formed the -- out of which the  Proclamation arose, then one -- the only conclusion  one can come to is that whatever the knowledge was of  the headwaters of the Mississippi at the time and of  the scope of Rupert's Land at the time, the intention  was that Canada, the area ceded, would be closed off  with the northwest by the intersection of the  Mississippi headwaters and the boundary of Rupert's  Land.  And starting at page 108 I say this -- or  paragraph 108:  In the draft report of the Board of  Trade prepared by John Pownall, and known as the  Sketch, he describes the reserve as lying between the  Appalachian Mountains and the Mississippi from east to  west, and between the Great Lakes drainage system and  1  2  3  4  5  6  MR.  7  8  9  THE  10  MR.  11  12  THE  13  14  MR.  15  THE  16  17  18  MR.  19  THE  20  MR.  21  22  23  THE  24  MR.  25  26  27  28  29  THE  30  MR.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 27417  Submissions by Mr. Goldie  1 the Gulf of Mexico from north to south.  The summary  2 of the plaintiffs' argument -- and if this was  3 repeated in the oral argument, I needn't make any  4 further reference to it -- but the plaintiffs' in  5 their written summary said that the sketch did not  6 define the western boundary for the reserve.  And I  7 refer to the Sketch which is Exhibit 1159-52 at page  8 260.  The -- under tab 108 is the plaintiffs' summary  9 of their argument to which I refer, and I needn't.  10 And then —  11 MR. RUSH:  My lord, perhaps just to make the point, that I think  12 in our argument, our final argument, we -- our point  13 was that it was the northwestern boundary and not the  14 western boundary; the western boundary being the  15 Mississippi.  There is no northwestern boundary was  16 our point.  17 THE COURT:  Yes.  In the Proclamation or in the Treaty of Paris  18 or both?  19 MR. RUSH:  In the sketch.  20 MR. GOLDIE:  In the sketch.  21 THE COURT:  In the sketch.  22 MR. RUSH:  And I think we included that as part of the argument.  23 Well, we did.  24 MR. GOLDIE:  Well, the written summary is stated and I accept my  25 friend's correction of it.  26 The western boundary of the Indian territory was  27 not defined.  And then turning to the --  28 THE COURT:  Where is that?  29 MR. GOLDIE:  That's under tab 108, my lord.  3 0 THE COURT:  Yes.  31 MR. GOLDIE:  Sorry — yes, 108.  The — I want to turn to the  32 sketch which is the first document under tab 108, and  33 this is Pownall's sketch, at the top of page 260, and  34 he introduces this discussion by saying at the bottom  35 of page 258 -- sorry, 259 is missing so I can't give  36 you the full introduction, but the words I'm referring  37 to start at line four:  38  39 ...all the country lying between the ridge of  40 the Apalachian [sic] mountains and the river  41 Mississippi as low down to the Gulph [sic] of  42 Mexico as the settlements and claims of the  43 Indians extends, as also all the country lying  44 around the Great Lakes as far as the heads of  45 every river or water that falls into them,  46 should be considered as lands belonging to the  47 Indians, the dominion of which to be protected 2741?  Submissions by Mr. Goldie  1 for them by forts and military establishments  2 in proper places.  3  4 Now, it will be my submission and it is my  5 submission that that was intended to provide a  6 complete -- although he didn't flesh it out, a  7 complete description of the -- of the reserve.  8 Now, the Board of Trade's report to the King of  9 June the 8th -- which substantially adopted Pownall's  10 suggestions -- recommended a reserve in accordance  11 with the Sketch.  Although the precise limits of the  12 reserve were not laid out, reference is made to the  13 Mississippi as the western boundary.  And I make  14 reference under tab 109, and it's about midway down  15 page -- about two-thirds of the way down page 102,  16 beginning with the sentence: "And We apprehend that no  17 such Delay can be attended with very material  18 Inconvenience".  And then these are the principal  19 words:  20  21 ...since if Your Majesty shall be pleased to  22 adopt the general proposition of leaving a  23 large Tract of Country round the great Lakes as  24 an Indian Country, open to Trade, but not to  25 Grants and Settlements, the Limits of such  26 Territory will be sufficiently ascertained by  27 the Bounds to be given to the Governors of  28 Canada and Florida on the North and South, and  29 the Mississippi on the West; and by the strict  30 Directions...  31  32 Et cetera.  33 Now, as we will see, in my submission, the --  34 that was intended to provide for a boundary which was  35 ascertained -- if not known on the ground, was  36 ascertainable.  37 The reference to "the limits of the governors of  38 Canada and Florida on the north and south", are  39 explained by the fact that at this point, it was  40 intended to give to the new Province of Quebec an  41 extended geographic definition rather than the one  42 that finally emerged and this is what is dealt with  43 next.  44 When Secretary of State Egremont received the  45 report he reviewed it, noted his concern about the  46 lack of civil jurisdiction over the reserve, and  47 brought that matter to the attention of cabinet. 27419  Submissions by Mr. Goldie  1 And the circumstances -- the evidence is under  2 that tab and the particular document I refer to is the  3 one that is -- begins at page 4 under that tab, it's  4 immediately following the first blue separator.  It's  5 document Exhibit 1159-62, one of Dr. Greenwood's  6 footnotes.  And midway down the column on that page --  7 I'll read the whole thing.  8  9 I take it for granted that the Restriction of  10 the New Government of Canada to the Boundary  11 specified in the Report of the Board of Trade,  12 is only supposed to relate to the  13 Settlements -- Plantations and Grants of Lands,  14 to be confined to those limits.  But this  15 government as to Jurisdiction, will certainly  16 include, in the Governor's Commission, all the  17 Indian Country as far to the North as where it  18 may meet with the Grant to the Hudson's Bay  19 Company.  20  21 Now, at the request of the Cabinet for assistance  22 in resolving this matter, Egremont wrote to the Board  23 suggesting that they consider giving Canada  24 jurisdiction over the reserve.  And in that letter he  25 outlined what the boundaries of the extended Canada  26 should be and described them as stretching as far  27 north and west as the limits of the Hudson's Bay  28 Company and the Mississippi River.  2 9 And my lord, I refer to the document under tab  30 4-111, and this is Egremont to the Board of Trade of  31 July 14th, 1763.  And about two-thirds of the way down  32 the first paragraph are the words beginning as  33 follows:  "And other Powers".  Has your lordship found  34 that?  35 THE COURT:  Not yet.  It's in that first full paragraph?  36 MR. GOLDIE:  It's in the first full paragraph.  I said it's  37 about two-thirds.  It's really more accurately about  38 half-way down and the word "And" begins at the  39 right-hand margin and it reads:  40  41 And other Powers, who might hereafter find  42 Means of Access to those Countries, might take  43 Possession thereof, as derelict Lands: The  44 King therefore is of Opinion, that, in the  45 Commission for the Governor of Canada, all the  46 Lakes, [that is] Ontario, Erie, Huron,  47 Michigan, and Superior, should be included, 27420  Submissions by Mr. Goldie  1 with all the Country, as far North & West, as  2 the Limits of the Hudsons Bay Company, and the  3 Mississippi.  4  5 Now, Egremont died very shortly after that, as I  6 understand it, and in any event, before the  7 Proclamation was issued, and Lord Halifax became  8 Secretary of State responsible for the colonies.  Four  9 days after the Royal Proclamation was issued, Halifax  10 wrote to General Amherst, Commander-in-Chief in North  11 America, advising him that the Proclamation adopted  12 the Board's report with respect to the interior  13 country to be reserved to the Indians.  No mention was  14 made of changing the limits of the reserve defined by  15 the Board.  16 And that's found in the document under tab 112,  17 and it's at the top of the first page, and it -- and  18 Mr. Humphreys, who is the editor, quotes -- I'm sorry,  19 not the editor, but he is the author of this  20 particular note, writes as follows:  21  22 "By this Proclamation," wrote Halifax to  23 Amherst, "you will perceive that the  24 propositions made by the Board of Trade in  25 their report of the 8th of June last, have in  26 general been adopted, with respect to the new  27 governments to be erected, and the interior  28 country to be reserved for the use of the  29 Indians.  30  31 And then he says that the new country is to be  32 called the Province of Quebec.  And the transcript  33 reference is under the same tab.  And Dr. Greenwood  34 noted that Halifax mentioned a boundary change in  35 respect of East Florida but that was all.  36 That, in my submission, indicates that so far as  37 the documents that may be looked at with respect to  38 the circumstances giving rise to the Proclamation go,  39 they indicate clearly that it was the intention to  40 provide a fixed boundary as to the reserve and the  41 northern -- sorry, that the -- the northern boundary  42 was the lands of the Hudson's Bay Company and the  43 western boundary was the Mississippi and that they  44 were thought to intersect.  45 Now, I go to the eastern boundary and there  46 really is no particular question about that.  47 MR. RUSH:  Just before my friend proceeds to do that point, I 27421  Submissions by Mr. Goldie  1 rise to just correct my friend's written argument.  On  2 paragraph 109, the last sentence, our final argument  3 indicated that there was no northwestern boundary.  4 MR. GOLDIE:  Oh yes.  That's the reference to the plaintiffs'  5 summary.  I accept my friend's position that he was  6 talking about the northwestern boundary.  My lord, I  7 don't think there is any such thing as the  8 northwestern boundary.  There is the eastern boundary,  9 there is the western boundary and there is the  10 northern and there is the southern.  11 THE COURT:  Somewhere between north and west is northwest.  12 MR. GOLDIE:  Somewhere -- that's correct.  But in my submission,  13 nobody thought of a northwest boundary in terms of  14 anything which was separate and distinct as from the  15 intersection of the Mississippi and the Hudson's Bay  16 Company's holdings.  17 I was going to go on at page 43 to the eastern  18 boundary of the reserve.  19 The defendant province submits that there is no  20 dispute about the location of the eastern boundary of  21 the reserve -- and I add the words -- described in the  22 Proclamation as lands to the west of the sources of  23 the rivers which fall into the sea from the west or  24 northwest.  And I say that is in the Proclamation as  25 viz and where the words that I have just referred to  2 6 are found.  27 And then I submit that scholars have reached a  28 consensus that the demarcation between the colonies  29 and the reserve is the Appalachian Ridge or  30 watershed - often referred to as the "Appalachian  31 Line" or "Proclamation line".  And that is more -- is  32 more extensively discussed a little later.  33 My lord, under tab 114 is a map which I'll refer  34 to in a minute.  And under tab 113 there should be a  35 coloured extract from the Historical Atlas.  Is  36 that —  37 THE COURT:  Yes.  38 MR. GOLDIE:  In my submission, that represents what emerged from  39 the Treaty of Paris and the Royal Proclamation -- not  40 without some dispute by various people -- but that, I  41 say, is substantially it.  And your lordship will see  42 the extent of the Indian territory which purports to,  43 and does in fact, hem in the British colonies on the  44 east coast.  It also extends to the northeast in the  45 sense that it includes -- it appears to include the  46 lands lying between the southern boundary of Rupert's  47 Land and the northern boundary of the 1763 Quebec. 27422  Submissions by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  1  11  12  13  14  15  16  17  18  19  20  21  22  23  24  THE  COURT:  25  MR.  GOLDIE  26  THE  COURT:  27  MR.  GOLDIE  28  THE  COURT:  29  MR.  GOLDIE  30  31  32  33  34  35  1  36  ]  37  38  THE  COURT:  39  40  MR.  GOLDIE  41  THE  COURT:  42  43  MR.  GOLDIE  44  THE  COURT:  45  MR.  RUSH:  46  THE  COURT:  47  MR.  RUSH:  The Newfoundland -- coast of Labrador is what was  first established and which was then later transferred  back to Quebec under the Quebec Act of 1774, and then  was later re-retransferred back to Newfoundland and  all of which gave rise to the reference to the  Judicial Committee in 1927.  Going back to paragraph 114.  Antecedents of the  Appalachian Line may be found in Pownall's Sketch,  Ellis' Hints, and the Report of the Board of Trade  dated June 8, 1763.  The Bowen chart sent to the King  with the Board's record shows the line in dark pink  running along the back of the older colonies on the  Appalachian watershed.  Other contemporary maps use  the Appalachian chain as the western boundary of  settlement.  And the Bowen map is -- your lordship can  see it, the difference in the tinting.  Under tab 114 is Exhibit 1164-195, and, my lord,  that is a map identified as John -- by John Gibson,  "The British Governments in North America laid down  agreeable to the Proclamation of October 7th, 1763,"  as published in Gentlemen's Magazine of that year.  It  conforms fairly substantially to what the Historical  Atlas has shown us.  This is published in 1765?  :  1763 itself.  That's the date of the Proclamation, isn't it?  :  Yes.  But apparently it was published --  All right.  :  -- very close around that date.  Now, the northern boundary of the reserve, in  paragraph 115 -- well, I should say that the eastern  boundary of the reserve appears to be fairly clear.  It created some disputes amongst the colonies and it  gave rise to the argument that I referred to that was  dealt with by Chief Justice Marshall in Johnson and  M'Intosh.  Now, going to the northern boundary.  I think if you are starting a new section we will  adjourn, Mr. Goldie.  :  All right, my lord.  Is it convenient if we adjourn at 4:30 this  afternoon?  :  Yes.  Yes.  To adjourn to 4:30?  No.  At 4:30.  I couldn't believe my good luck. 27423  Submissions by Mr. Goldie  1 THE COURT:  Unless you have something more important in mind.  2 THE REGISTRAR:  Order in court.  This court stands adjourned.  3  4 (PROCEEDINGS ADJOURNED AT 12:30 P.M.)  5 I hereby certify the foregoing to  6 be a true and accurate transcript  7 of the proceedings transcribed to  8 the best of my skill and ability.  9  10  11  12  13    14 Toni Kerekes,  15 Official Reporter,  16 UNITED REPORTING SERVICE LTD.  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 27424  Submissions by Mr. Goldie  1 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Goldie.  4 MR. GOLDIE:  My lord, couple of things that were left  5 outstanding this morning I can deal with.  The date of  6 the Hints, February 25th, 1763.  7 THE COURT:  Can you instruct me where I might usefully make that  8 notation?  9 MR. GOLDIE:  Miss Fenlon will get that for me.  Prince of Wales  10 Island, it's west of Ketchican, north of the Queen  11 Charlottes and part of Alaska.  12 THE COURT:  We're both right.  Both possibilities are right.  13 MR. GOLDIE:  Paragraph 82 of Part IV is the reference to Hints,  14 and the document which is under the yellow binder tab  15 number is -- the date of that is February 25th, 1763.  16 THE COURT:  Tab 82.  17 MR. GOLDIE:  Yes.  It actually would be under 83.  18 THE COURT:  All right.  And the date was?  19 MR. GOLDIE:  February 25, 1763.  2 0 THE COURT:  Thank you.  21 MR. GOLDIE:  And then I pick up at page 44 of Section 4 of Part  22 V, the northern boundary of the reserve.  And the  23 submission here is that by necessary implication the  24 reserve is bounded to the north by Rupert's Land.  25 THE COURT:  Where is that again?  26 MR. GOLDIE:  That's page 44, paragraph 115, my lord.  2 7 THE COURT:  Yes.  28 MR. GOLDIE:  And, of course, the implication is in reference to  29 the construction of the Royal Proclamation.  While the  30 western extent of Rupert's Land was not known  31 precisely in 1763, contemporaries held two views as to  32 the southern reach of the Hudson's Bay Charter.  33 Commonly the southern limit was held to run either  34 along the 49th parallel or along the heights of land  35 to the west of Lake Abitibi.  And the reference there  36 is to the evidence of Dr. Greenwood.  The --  37 THE COURT:  How far north would that 49th parallel be?  38 MR. GOLDIE:  The heights of land to the Lake Abitibi?  39 THE COURT:  Yes.  How far north would that put it from the  40 source of the Missippi?  41 MR. GOLDIE:  Well, of course, that depends -- in reality or --  42 THE COURT:  Yes, in reality.  43 MR. GOLDIE:  The source -- it's above the source in reality.  44 MR. RUSH:  Considerable distance.  That was the point of  45 difference.  46 MR. GOLDIE:  It intersected the source of the Missippi,  47 according to the belief at the time. 27425  Submissions by Mr. Goldie  1 Now, the Bowen map, which is the one up on the  2 board, my lord, shows the southern boundary of  3 Rupert's Land running west from a point south of James  4 Bay along the 49th parallel indefinitely.  It is  5 marked "The Southern Boundary of the Hudson Bay  6 Company's Territories Settled by Commissaries after  7 the Treaty of Utrecht."  8 And in the next paragraph I note the background of  9 that, which I think your lordship may already be  10 familiar with.  The issue following the Treaty of  11 Utrecht was never resolved.  And I read to you from  12 the work of Mr. McNeil on the significance of the word  13 restored in the -- in the Treaty of Utrecht itself.  14 And then in paragraph 117 on page 45 I say  15 nonetheless -- and by nonetheless I mean the failure  16 to agree -- from 1749 on it is almost invariable that  17 British maps of the day showed the 49th parallel as a  18 southern limit, and referred to the boundary as one  19 agreed on by the Treaty of Utrecht even though that  20 assertion was without foundation.  21 Now, the transcript reference there should read  22 page 20585 line 16 to page 20586 line 43.  Now, the --  23 the -- the document reference is referred to by Dr.  24 Greenwood in the evidence that is noted there and it  25 is once again to the -- to the -- to the material  26 gathered up for the Ontario-Manitoba boundary dispute.  27 And Dr. Greenwood notes that on the pages that are  28 referred to.  And if your lordship would look at the  29 documents following the blue separator sheet, it's  30 taken from "Notes on Maps 1632-1857", which is from  31 the publication prepared for the Government of Ontario  32 and the annotations, I believe, are those of Mr.  33 Mills, the relevant references on pages 136 T, U, P.  34 Those pages must be out of order, but be that as it  35 may, it's to -- on page 136T, the statement of the  36 annotator is:  37  38 "Our knowledge of this map is derived from the  39 author's remarks in support, et cetera, London,  40 printed for Thomas Jefferys, 1753, in which he  41 says:  'I have drawn the line which parts the  42 French from English Canada, by beginning it at  43 Davis' Inlet on the east coast of Labrador, or  44 New Britain, (in the latitude of about 56  45 degrees) drawing it with a curve through the  46 Lake Abitibi down to the 49th degree of  47 latitude; from thence to be continued to the 27426  Submissions by Mr. Goldie  1 northwest ocean, as it was settled by  2 commissioners after the Treaty of Utrecht."  3  4 And then on page 136U -- and this refers to a map sent  5 by the Hudson's Bay Company apparently to the Dominion  6 Government.  And the first half of it refers to the  7 line that was drawn there.  But the one I want to  8 refer to is (83) on page 136P, which again contains  9 the statement — 1749:  10  11 "A line" ...  12  13 This is the second paragraph.  14  15 "A line is drawn through Lake Mistassin to the  16 49th parallel marked '1712'.  This line by the  17 Treaty of Utrecht was settled as the dividing  18 line between Canada and Hudson's Bay.  Another  19 line drawn along 48th parallel to the river St.  20 Lawrence has on it the inscription:  'This line  21 of north latitude, 48 degrees, was the northern  22 boundary of the grant made by King James the  23 1st, to the Council of Plymouth, in 1621; but,  24 in the year 1632, King Charles the 1st ceded  25 all the lands laying to the northward of Canada  26 (St. Lawrence) River to the French, and Canada  27 or New France was indefinite in its northern  28 boundaries till the year 1712'.  29 There is also on the map this further  30 inscription:  'By the Treaty of Utrecht, the  31 lines between the English and French were thus  32 adjusted:  Beginning on the North Atlantic  33 Ocean, in north latitude 58 degrees 30 minutes;  34 thence running south-west to Lake Mistassin;  35 and thence continuing south-west till the line  36 touched 49, north latitude; and thence west  37 indefinitely."  38  39 And then there is a note, which purports to give the  40 history of the assertion that the limits of Canada --  41 of Hudson's Bay Company and Canada were never settled  42 pursuant to the stipulations of the treaty.  And those  43 all have in common the 49th parallel.  44 And I -- then at paragraph 118 I make reference to  45 the proceedings before the Judicial Committee.  In  46 1884, as a result of the border dispute between  47 Manitoba (supported by Canada) and Ontario, the 27427  Submissions by Mr. Goldie  1 Judicial Committee of the Privy Council ruled in its  2 application of an arbitration award.  I think that was  3 the actual effect.  That the southern limit of  4 Rupert's Land to the west of Lake Superior ran west  5 from between 50 and 51 ending in the north, ending in  6 the west just north of the 50th parallel at Lake of  7 the Woods.  And Dr. Greenwood's reference to that is  8 in the transcript.  9 In conclusion, the Defendant Province submits that  10 the prevailing view in 1763 was that the southern  11 reach of Rupert's Land ran west of Lake Superior and  12 intersected the Mississippi River in about 49 degrees  13 north.  That maps containing this information were  14 relied upon by the framers of the Royal Proclamation  15 will be demonstrated at a later point in this summary.  16 And then the western summary -- western boundary.  17 Although the western boundary of the reserve is not  18 specified in the Royal Proclamation, the historical  19 record demonstrates that the framers intended the  20 reserve to extend no farther west than the Mississippi  21 River.  22 Once again the starting point is the Treaty of  23 Paris.  Article VII of the Treaty fixes the  24 international frontier between France -- I say in  25 reality Spain because France very shortly after the  26 treaty, or perhaps even at the time the treaty was  27 being negotiated, had secretly agreed to cede  28 Louisiana to Spain and England by a line drawn along  29 the middle of the Mississippi River from its source to  3 0 the mouth.  31 Next, the understanding of the framers of the  32 Royal Proclamation regarding the location of the  33 source of the Missippi must be considered.  34 Today the Mississippi River is agreed by scholars  35 to rise in Lake Itasco at latitude 47 degrees 13  36 minutes north.  While the latitude of the mouth of the  37 Mississippi River was known in 1763, that of its  38 source was not.  39 And, my lord, that takes us into the next binders.  40 And I provide your lordship with Volume 15.  The  41 transcript reference under Tab 1-123 is Dr. Farley's  42 evidence in chief in which he identifies the  43 co-ordinates for Lake Itasco.  44 And then in paragraph 124, because the terrain in  45 the upper reaches of the Mississippi River abounds  46 with lakes and swamps, drainage patterns are  47 remarkably difficult to determine.  The resulting 2742?  Submissions by Mr. Goldie  1 confusion in 1763 about the source of the Mississippi  2 was exacerbated by the relatively primitive  3 cartographic methods of determining location available  4 to explorers in the 18th century.  And that reference  5 is to Dr. Farley's report in which he speaks of the  6 difficulty in taking bearings, especially in heavily  7 timbered lands, and the corresponding accuracy of  8 bearings taken at sea close to the land.  9 Contemporary beliefs about the source of the  10 Mississippi River can be gleaned from the maps of the  11 day.  A cross-section of reputable 18th century maps  12 shows the source of the Mississippi River ranging from  13 46 degrees 15 north (The Jefferys/Bowen map), number  14 16 of Dr. Farley's folio, to 51 degrees north (Bowen's  15 map 1149).  That's number 11 of Exhibit 1149.  16 Reference is often made in the maps to the source of  17 the Mississippi River being unknown.  18 And the first reference is to Dr. Farley's report,  19 and that includes part of the earlier comment about  20 the primitive nature of the tools the map makers had  21 to work -- not the map makers, but the people on the  22 ground taking observations, as well as the statements  23 about the confusions on the -- the confusion over the  24 exact location of the source.  Dr. Farley starts out  25 at page 21 and refers to Bellin and Bowen/Jefferys  26 map.  And then at page 23 there is a summary of the  27 findings that he makes.  And your lordship may recall  28 that he did some overlays in which he traced the  29 Mississippi in terms of these maps that he looks at in  30 his table.  And the point of it simply is, as he said,  31 to demonstrate how very widely these maps indicated  32 the source.  33 THE COURT:  What was that red line?  34 MR. GOLDIE:  The red line, my lord, is — that is Popple of  35 1733.  36 THE COURT:  Is that intended to depict the Mississippi?  37 MR. GOLDIE:  That's what it is purported to do, my lord.  38 THE COURT:  All right.  39 MR. GOLDIE:  And then the purple line is Bowen's map 12, and  40 that's the one that just dwindles off to the left.  41 And then the green one is Bellin.  42 The Bowen map -- I'm at paragraph 126.  The Bowen  43 map attached to the Board of Trade's report shows the  44 Mississippi headwater at 47 degrees 45 minutes north,  45 but bears the inscription "Mississippi R.", or river,  46 "its head very uncertain situated according to the  47 Indians in a very marshy country about the 50th degree 27429  Submissions by Mr. Goldie  1 of latitude".  A smaller scale Bowen of the same year  2 shows the heads of the Mississippi in latitude 50  3 degrees north.  The -- the two references are to the  4 two Bowen maps.  One is the small one in the folio and  5 the other is the -- is the larger one, which is with a  6 separate exhibit number, which is up on the board  7 there.  8 And then in paragraph 127, a map used by the  9 British Military in North America dated 1765 depicts  10 the Mississippi arising north of Lake Superior.  11 That's the cantonment maps.  And, my lord, they are --  12 they are -- we have copies here.  As the name implies,  13 my lord, it is the -- it is the state of the army, not  14 in terms of numbers but in location of units, as of  15 the 11th of October, 1765.  And I've already made  16 reference to it, but I simply refer your lordship to  17 the heavy line where my left forefinger is.  And in  18 relation to Lake Superior it is -- just it purports to  19 show the Mississippi arising just north of Lake  20 Superior.  I don't mean north in the sense of arising  21 north, but in latitude, North of Lake Superior.  22 The Board of Trade -- in paragraph 128 I refer  23 there to the -- to the Bowen map, which is on the  24 board, and I say that it is the scholarly consensus  25 that the chart so annexed was Bowen's large scale map  26 of North America.  And the map indicates by way of a  27 printed note, as I read from Dr. Farley, that the  28 Mississippi headwaters arise at about 50 degrees  29 north.  30 And in paragraph 130 I submit that it is likely,  31 to the point of near certainty, that the Board of  32 Trade, the Secretary of State, and the King referred  33 to the Popple map of 1733 and the Mitchell map of 1755  34 in their deliberations leading up to the Royal  35 Proclamation.  These maps were the preferred maps of  36 the Board of Trade in the sense that both had been  37 commissioned by the Board.  Pownall had signed the  38 Mitchell map.  That's the secretary of the board.  39 Both maps suggest that the headwaters of the  40 Mississippi were located at about 50 degrees north  41 latitude.  And both those maps are found in Dr.  42 Farley's folio number 9, being Popple, and number 10,  43 being Mitchell.  Your lordship may recall that Dr.  44 Farley mentioned that Mitchell's map particularly had  45 widespread use on the British side.  46 Continuing at paragraph 131, a copy of the  47 Mitchell map was found among the personal papers of 27430  Submissions by Mr. Goldie  1 Egremont and three copies of that map were found in  2 the King's personal library after his death.  In  3 addition, Mitchell was a close friend of Halifax, who  4 had been president of the Board of Trade.  Dr.  5 Greenwood's basis for that -- those assertions are  6 found in the transcript.  7 Contemporary beliefs about the source of the  8 Mississippi can also be determined from records other  9 than maps.  A report prepared for the British  10 Commander-in-Chief by one Philip Pittman, detailing  11 settlements along the Mississippi in 1770, suggested  12 that the Mississippi rose 700 leagues (approximately  13 2100 miles) north of the falls of At. Anthony.  Now,  14 the falls of St. Anthony themselves were a very  15 considerable distance from the mouth of the  16 Mississippi.  And I'll just refer to the document in  17 question.  It is printed in London in 1770.  It's  18 under Tab 132, my lord.  19 THE COURT:  Yes.  20 MR. GOLDIE:  And the particular chapter or section is headed  21 "The Present State of the European Settlements on the  22 Mississippi".  The last paragraph on the page:  23  24 "Nothing can, with propriety, be asserted with  25 respect to the source of this river, tho' there  26 are people still existing, who pretend to have  27 been there.  The accounts, which I think should  28 be paid most attention to, are those which have  29 given by the Sioux, a very numerous itinerant  30 nation of Indians, who generally reside in the  31 countries north of the Mississippi:  A few of  32 them have sometimes come to the French post, on  33 the River Illinois, to barter skins and furs;  34 but in general they dislike the Europeans, and  35 have little inclination to be much acquainted  36 with them.  Their account is as follows:  The  37 River Mississippi rises from a very extensive  38 swamp, and its waters are increased by several  39 rivers (some of them not inconsiderable)  40 emptying themselves into it in its course to  41 the fall of St. Anthony, which, by their  42 accounts, is not less than 700 leagues from the  43 great swamps:  This is formed by a rock running  44 across the river, and falls about twelve feet  45 perpendicular, and this place is known to be  46 800 leagues from the sea."  47 27431  Submissions by Mr. Goldie  1 So that your lordship will see that the falls of St.  2 Anthony were asserted to be 2400 miles from the Gulf  3 of Mexico and the source was said to be another 2100  4 miles.  So that -- and he concludes:  5  6 "So that it is most probable that the  7 Mississippi runs, at least, four thousand five  8 hundred miles."  9  10 The cartographer Jonathan Mitchell wrote a book  11 published in 1757 in which he described the  12 Mississippi River as draining from latitude 50 or 51  13 north to the Gulf of Mexico.  And that is under the  14 next tab.  And this is Mitchell's book called "The  15 Contest in America Between Great Britain and France".  16 And the original of -- the facsimile of the original  17 page is in the next page.  That's 1757.  And on page  18 77, which is the right-hand column, it -- the first  19 complete paragraph begins with these words:  20  21 "As for the Mississippi it is still more  22 extensive than the river St. Lawrence.  It  23 springs in the northern and western parts of  24 North America, about the same sources with the  25 waters that fall into the great lakes and the  26 river St. Lawrence, and runs through that whole  27 continent almost, from the latitude 50 or 51,  28 to the latitude 29.  Its branches again spread  29 from east to west, rather farther perhaps than  30 this its course from north to south."  31  32 And I now deal with the boundary which I say  33 wasn't really a boundary.  The framers of the Royal  34 Proclamation believed that the headwaters of the  35 Mississippi River arose at about 50 degrees north,  36 that Rupert's Land extended as far south as 49  37 degrees, and accordingly that the meeting of the  38 Mississippi and Rupert's Land formed a contiguous  39 north/west boundary for the reserve.  40 A number of historical documents dating after 1763  41 confirm that the reserve had been given definite  42 boundaries to the north and west.  My lord, I  43 interject at this point to refer to the Labrador  44 boundary reference, the judgment of the Privy Council,  45 which is in my friend's authorities, Volume 8 Tab 15.  46 And I refer at page 422 to these words:  47 THE COURT:  42? 27432  Submissions by Mr. Goldie  1 MR. GOLDIE:  422, yes, my lord.  2 THE COURT:  Yes.  3 MR. GOLDIE:  4 "The colony of Newfoundland claim to support  5 its case founded on the documents by a  6 reference to evidence showing that the  7 annexation of the coast had from the years 1763  8 onwards been understood and treated by everyone  9 as including the whole area lying between the  10 sea and the watershed or height of land."  11  12 And I now come to the words that I say are relevant to  13 my next submission:  14  15 "And there is no doubt that where a document is  16 ambiguous, evidence of a course of conduct  17 which is sufficiently early and continuous may  18 be taken into account as bearing upon the  19 construction of the document.  In this case"...  20  21 That is to say the Newfoundland case.  22  23 "In this case, the events of the 60 years next  24 after the year 1763 have a special relevance,  25 as the Statute of 1809, under which the present  26 title of Newfoundland directly arises, and the  27 Statute of 1825 may be assumed to have been  28 passed with knowledge of the public events  29 which had occurred before their passing."  30  31 With that background, I turn to paragraph 135 and say  32 as follows:  Among the original papers of Colonial  33 Secretary Dartmouth, preserved at the National  34 Archives of Canada, is an anonymous document which had  35 an influence on the Quebec Act of 1774.  The document  36 outlines the proposed extension to the boundaries of  37 Quebec.  The southern boundary is described as  38 extending in the south to the confluence of the Ohio  39 and Mississippi River.  The northern boundary is  40 described as following the limits of Rupert's Land  41 west as far as the Mississippi, and then south along  42 the Mississippi River to the Ohio.  43 Now, if I may refer -- first I should ask your  44 lordship to stroke out the first exhibit number; that  45 there is only the one exhibit.  The first 1167-316 is  46 not relevant.  I turn to Tab 135.  And this is a  47 handwritten copy of Exhibit 1167-314.  And then 27433  Submissions by Mr. Goldie  1 following the -- following the blue separator sheet is  2 a printed version of that found in the Shortt and  3 Doughty constitutional documents.  And I refer first  4 to footnote number 1 on page 381:  5 THE COURT:  Yes.  6 MR. GOLDIE:  7 "Canadian Archives, Dartmouth Papers.  The  8 boundary line as here proposed indicates the  9 limits within which it was desired to confine  10 the English colonies.  That it was largely  11 adopted, despite the opposition of some  12 supporters of the Ministry, will be seen from  13 the third draught of the bill which follows.  14 No clue is given as to the author of this  15 proposal, but as may be observed from a letter  16 of Dartmouth to Cramahe of December 1st, 1773,  17 this extension of the limits of the Province,  18 like the establishment of the Roman Catholic  19 religion, was represented as a direct  20 concession to the Canadian noblesse and clergy  21 in response to their petition."  22  23 Now, referring to the last paragraph of that document,  24 which ends at page 382, those two paragraphs on that  25 page are introduced by the words "Limits and  26 boundaries of the Government of Quebec should be  27 altered and enlarged in the following manner, that is  28 to say".  And then I won't bother with the first  29 paragraph.  And the second paragraph traces the line  30 to the entrance of the Lake Ontario from the St.  31 Lawrence.  32  33 "That the said line should pass from thence  34 across the said lake to the mouth or entrance  35 of the Strait of Niagra and should pass along  36 the East side of the said Strait until it falls  37 into the northern boundary of the province of  38 Pensylvania, and from thence it should follow  39 the course of the said boundary line as well as  40 on the north as the west, to the point where it  41 intersects the River Ohio, and so following the  42 course of the said river, from the said point  43 to its confluence with the River Mississippi.  44 That the said government should comprehend all  45 the coast of Labrador as far east as Esquimaux  46 River and be bounded on the north by a line  47 drawn drawn due west from the mouth of the said 27434  Submissions by Mr. Goldie  1 river to the southern limits of the territory  2 granted to the Hudsons Bay Company and to  3 follow the course of the said limits as far as  4 the River Mississippi, the said river to be the  5 boundary on the west from the point where it is  6 intersected by the southern limits of the  7 territory granted to the Hudson's Bay Company  8 as aforesaid, as low down as the mouth of the  9 River Ohio."  10  11 So that would complete the loop, so to speak.  12 The commission to Governor Carleton of Quebec  13 (December 1774) I have referred to and it was drafted  14 to comply with the changes in the boundaries of  15 Quebec.  And I won't repeat that reference, my lord.  16 It -- its inception is found in the -- in the document  17 at -- under Tab 136, which is an extract from the  18 proceedings of the Privy Council.  And in 1774 on  19 December 10th the commission was referred to the  20 Attorney and Solicitor General for changes in  21 pursuance to the Quebec Act.  22 Going back to my summary, the portion of the  23 commission dealing with the western and southwestern  24 boundaries of Quebec traces that limit along the Ohio  25 River and then north along the banks of the  26 Mississippi to Rupert's Land.  27 When Sir Frederick Haldimand was appointed  28 Governor of Quebec in 1777, his commission contained a  29 similar description of the western boundary of Quebec.  30 Lord Dorchester's commission of 1786 as Governor  31 of Quebec also draws the boundary due west from the  32 Lake of the Woods to the River Mississippi.  33 The Treaty of Paris, 1783, which brought an end to  34 the American Revolution, settled the international  35 boundary between British North America and the United  36 States.  That part of the boundary separating Rupert's  37 Land from American territory describes a line drawn  38 due west just above the 49th parallel to the  39 Mississippi River.  And the references there, my lord,  40 are taken from the publication documents illustrative  41 of the Canadian Constitution, and Appendix A is the  42 treaty in question.  And the part that is relevant in  43 paragraph two is in the first paragraph on that page  44 268 beginning with the words "Thence through the  45 middle of said long lake".  It's about half-way down  46 the paragraph.  It should be a side line that  47 indicates it. 27435  Submissions by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. GOLDIE:  Yes.  "Thence through the middle of said long lake  and the water communication between it and the  Lake of the Woods, to the said Lake of the  Woods, thence through the said lake to the most  western point thereof and from thence on a due  west course to the River Mississippi."  So that it -- at that point it was thought there would  be an intersection with the River Mississippi.  The other reference is to Dr. Greenwood's evidence  and at page 20625 of Volume 277, which is part of that  extract --  THE COURT:  I'm sorry.  What page?  MR. GOLDIE:  Page 20625.  The extract begins at page —  THE COURT:  Yes.  MR. GOLDIE:  — 20624 and the witness' attention had been  addressed to the treaty language, the Treaty of Paris  of 1783.  And at line 11 on page 20625, the question  is put:  Q   "Right.  About what parallel are we at when  the -- we're directed to go due west on a  due west course to the Mississippi?  A   Just slightly above the 49th I believe."  And then at page  line 30:  Q   "What is being separated or what is  between -- between what political entities  are we looking at with respect to that  boundary?  A   Essentially it's Rupert's Land.  After the  Lake of the Woods it's essentially Rupert's  Land and the United States of America.  East of the Lake of the Woods it would be  Quebec."  I say in the Manitoba-Ontario boundary dispute  which has been referred to earlier, part of Manitoba's  case was that the line from the confluence of the Ohio  and Mississippi rivers should be drawn due north  rather than along the northwestern course of the  Mississippi.  The dispute is significant because  Ontario's -- or that is to say Upper Canada from 1791  to 1867 -- boundaries tracked the limits of the 27436  Submissions by Mr. Goldie  1 western half of the old colony of Quebec.  I say old  2 colony.  I mean post-1774.  3 Now, Manitoba's position was rejected.  The  4 Judicial Committee upheld Ontario's submission that  5 the 1774 colony of Quebec, which became Upper Canada,  6 extended north along the banks of the Mississippi.  7 That is to say, it tracked those limits.  8 Jay's Treaty between Great Britain and the United  9 States settled a number of outstanding issues in 1794,  10 but referred to an uncertainty about whether the  11 Mississippi River in fact extended as far north as the  12 southern limit of the British territories as specified  13 in the Treaty of Paris of 1783.  A commission was to  14 be appointed to deal with this, but it never met.  And  15 that's Dr. Greenwood's evidence.  16 The recently published Historical Atlas of Canada  17 is the result of the combined efforts of leading  18 cartographers and historians.  Plate 42 of the atlas  19 shows the reserve extending only as far west as the  20 Mississippi and as far north as the limit of Rupert's  21 Land.  And that's under Tab 144.  22 THE COURT:  That's the one we looked at before.  23 MR. GOLDIE:  And that's the one we looked at before, yes, my  24 lord.  What I'm saying here is that the people within  25 whose memory the matter would be fresh in dealing with  26 boundaries assumed that the limits of the reserve were  27 fixed and at the northwest corner that were  28 constituted by the intersection of the Mississippi and  2 9 Rupert's Land.  30 Now, I go on to the plaintiff's argument on the  31 extension of the reserve to the north and west of the  32 Mississippi River and to British Columbia.  And this,  33 I think, is a variation on the same theme, an open  34 door.  The plaintiffs rely on trade licences issued  35 after 1763 by the Governors of Canada to traders for  36 the region north and west of the Great Lakes in order  37 to support an assertion that this area formed part of  38 the reserve.  The licences issued were for the "Posts  39 of the Western Sea", which were located in and about  40 the Great Lakes of the prairies, extending no farther  41 west than Fort La Corne at the forks of the  42 Saskatchewan River.  And the various posts themselves  43 are found located in the Historical Atlas excerpt,  44 which is Exhibit 1170.  And that should be found under  45 Tab 145.  Yes.  And there should be a colour  46 reproduction of that, my lord.  47 Now, the -- in the exhibit itself, the numbers and 27437  Submissions by Mr. Goldie  1 names of the forts in French Canada -- not French  2 Canada, in the -- well, in French Canada and then in  3 the area exploited from French Canada are provided,  4 but one can locate the forts which are identified  5 elsewhere as the forts of the western ocean or western  6 sea, La Mer te 1'Ouest.  The situation which developed  7 after the conquest and after the Treaty of Paris of  8 1763 was that the Montreal merchants -- the French  9 merchants who had been accustomed to trading in the --  10 in Rupert's Land were joined by English-speaking  11 merchants and the competition with the Hudson's Bay  12 was very sharply increased.  13 Now, the submissions we make with respect to the  14 plaintiff's argument based upon these trade licences  15 and on the fur trade that it represents is set out  16 beginning at paragraph 146.  I say first and foremost,  17 the region for which the licences were granted formed  18 part of the Rupert's Land.  Now, as your lordship  19 was -- is aware, Rupert's Land was excluded from the  20 reserve by the express terms of the Royal  21 Proclamation.  In addition, the Indian Management Plan  22 of 1764, which is ex post facto evidence of the  23 intended geographic scope of the Proclamation's Indian  24 trade provisions, expressly prohibits interference  25 with the Hudson's Bay Company territory by its opening  26 article.  27 And under Tab 146 there is the -- an excerpt from  28 the Royal Proclamation followed by an excerpt from the  29 1764 plan, which was never fully implemented but can  30 be looked at as a statement of intention.  And article  31 1 or paragraph 1 of that plan reads, and I quote:  32  33 "That the Trade and Commerce with the several  34 tribes of Indians in North America under the  35 protection of His Majesty shall be free and  36 open to all of His Majesty's subjects, under  37 the several regulations and restrictions  38 hereafter mentioned, so as not to interfere  39 with the Charter to the Hudson's Bay Company."  40  41 Now, the -- the merchants of Quebec, especially of  42 Montreal, were not happy at any prospect of being shut  43 out of the areas that they had traded in before 1763.  44 But, nevertheless, in terms of the application of the  45 Royal Proclamation, the area itself was Rupert's Land.  46 The licences, in fact, to trade at "La Mer te 1'Ouest"  47 were rare in the years immediately following the Royal 2743?  Submissions by Mr. Goldie  1 Proclamation.  The plaintiffs put in evidence only  2 three such licences, the earliest of which was issued  3 in 1769.  And those exhibit references are to the  4 documents in question.  5 Then at paragraph 148, the issuance of the  6 licences for trading in Rupert's Land resulted from  7 the increasing pressure on colonial officials in  8 Canada after 1763 to grant licences to individual  9 traders (and eventually the North West Company)  10 operating out of Montreal.  And there is a reference.  11 The -- the first one under Tab 148 is to minutes  12 prepared by Lord Shelburne.  The -- and I won't  13 comment on that further.  But my point here is that  14 the Montreal merchants were determined to compete with  15 the Hudson's Bay Company for furs in Rupert's Land.  16 And your lordship will recall from what I read from  17 rich this morning that the Hudson's Bay Company  18 charter was being questioned at home and it was -- as  19 we will see, it was one that was regarded as very  20 shaky by the Montreal merchants, and they weren't  21 prepared to -- to acknowledge its monopolistic  22 features.  23 And as I will note, particularly in part 7 of my  24 summary, and I'm back in paragraph 148, the resulting  25 conflict between the Hudson's Bay Company and other  26 traders was ultimately resolved only by the merger of  27 that company with the North West Company.  28 The second flaw, in my submission, with respect to  29 the plaintiffs' reliance on trade licences is that  30 their argument assumes that the Indian trade  31 provisions were co-extensive with the Proclamation's  32 land provisions.  As will be demonstrated later, this  33 was not the case.  For example, it appears the trade  34 provisions apply to Nova Scotia, but the land  35 provisions did not.  Now, when I say the trade  36 provisions apply to Nova Scotia, I'm referring to the  37 fact that its tribes were listed in the Indian  38 Management Plan of 1764.  And I will acknowledge that  39 that plan in itself differs somewhat in its intentions  40 than the proclamation.  41 And then paragraph 150, thirdly, the issuance of  42 trade licences was not conclusive of the application  43 of the Royal Proclamation to the region named in the  44 licence.  After the American revolution licences were  45 issued for lands recognized by the British as American  46 territory.  And there is a reference to a treatise  47 there, my lord, under Tab 150.  And I won't read it, 27439  Submissions by Mr. Goldie  1 but it is part of the history of the British -- what  2 happened in the years following the American  3 revolution, the British retained some possession of  4 fur trading posts in what was then American territory,  5 what became American territory, and licences were  6 issued for that.  7 Montrealers trading with Indians in Spanish  8 Louisiana also appeared to be subject to colonial  9 trade regulations.  And it, of course, is unlikely  10 that the proclamation was intended to apply to Spain  11 or to territory owned by Spain.  12 Fourthly, the plaintiffs' argument assumes that  13 the Royal Proclamation was the only source of  14 authority for the issuance of licences.  The evolving  15 plan or policy for dealing with Indian trade in North  16 America was the result of a number of instruments  17 subsequent to the Royal Proclamation, such as  18 governors' commissions and instructions.  19 And under Tab 152 is the copy of Carleton's  20 instructions of January 3rd, 1775.  And paragraph 30 I  21 may have already referred to, but it refers to:  22  23 "The extension of the limits of the province of  24 Quebec"...  25  26 And parenthetically, of course, I note that's the  27 Quebec Act of 1774.  28  29 "... necessarily calls forth your attention to  30 a variety of new matter and new objects of  31 consideration.  The protection and control of  32 the various settlements of Canadian subjects  33 and the regulation of the peltry trade in the  34 upper or interior country, on the one hand, and  35 the protection of the Fisheries in the Gulf of  36 St. Lawrence", et cetera, on the others.  37  38 So the Governor of Quebec is being told that the  39 regulation of the fur trade is something that he can  40 take into his own hands.  41 That the British policy on Indian trade was  42 independent of the provisions of the Royal  43 Proclamation is made evident by the fact that the plan  44 came to embody policies inconsistent with the express  45 terms of the Royal Proclamation.  For example, the  46 Quebec ordinance of 1791 eliminated the requirement  47 that traders obtain licences from the Crown.  And 27440  Submissions by Mr. Goldie  1 under Tab 153 is the Quebec ordinance of April 14th,  2 1791.  And just down towards the bottom of the page,  3 my lord, on the English column are the words, quote:  4  5 "That from and after the publication of this  6 Act, it shall not be necessary for any of His  7 Majesty's subjects carrying on trade or  8 other -- or other something residence of this  9 province, to take out anywhere or from any  10 person or persons any licence, something or  11 other, permit, or other writing whatsoever; for  12 egoing into and something with the Indians as  13 other inhabitants of the western countries,  14 district or counties of this province, or  15 territories whatsoever."  16  17 That was, of course, directly contrary to the Royal  18 Proclamation provisions.  The bottom --  19 THE COURT:  It's sidemarked, isn't it?  20 MR. GOLDIE:  Yes, my lord.  It is, my lord.  21 MR. GOLDIE:  Now, that -- the next paragraph I have made a  22 reference to the judgment of the court of appeal in  23 Bear Island.  And the -- I -- what is included here is  24 a reference to what occurred in Quebec after the --  25 after the Quebec Act of 1774 was repealed a Royal  26 Proclamation.  And as I've just read, the licences  27 were issued notwithstanding the repeal up till 1791,  28 whereas by virtue of the repeal, the court of appeal  29 notes that the procedural requirements for purchase,  30 that is to say of Indian lands, at some public meeting  31 or assembly was repealed.  All I'm saying here, my  32 lord, is -- or not all I'm saying, but emphasizing the  33 fact that the -- the -- the Royal Proclamation in  34 respect of Quebec was repealed in 1774, but the  35 licences continued to be issued until 1791, and that  36 the court of appeal appears to view the effect of the  37 appeal in 1774 as immediately repealing the  38 requirement that the purchase be made at some public  39 meeting or assembly.  So there is no necessary  40 parallel connection between the regulation of the fur  41 trade and the land provisions of the Royal  42 Proclamation.  43 So I say in paragraph 155, in summary, the  44 evolution of the Indian Management Plan and the  45 licences issued under it are not evidence of the  46 application of the Royal Proclamation to the northwest  47 as a part of the reserve.  Nor do the licences suggest 27441  Submissions by Mr. Goldie  1 that the Royal Proclamation was prospective in nature.  2 And certainly the colony of Quebec in 1791 didn't  3 require that -- didn't even consider that the Royal  4 Proclamation required the continuation of licencing.  5 The plaintiffs also argue that the language used  6 in a number of Imperial acts demonstrates that British  7 Columbia was part of the reserve.  And the -- they  8 refer to the Act of 1803.  And I introduce my  9 consideration of that in the next paragraph.  10 A desire to bring all British holdings in North  11 America within the civil and criminal jurisdiction of  12 the governments of upper and lower Canada led to the  13 passing of "An Act for extending the jurisdiction of  14 the Courts", 1803, 43 George III, Chapter 138 (the  15 1803 Act), and then some years later "An Act for  16 regulating the fur trade and establishing a criminal  17 and civil jurisdiction within certain parts of North  18 America.  And that should be 1821, my lord, instead of  19 1828, 1821, George IV, et cetera, the 1821 Act.  The  20 1858 Act, that's the British Columbia Act,  21 establishing the colony of British Columbia repealed  22 the application of both the 1803 Act and the 1821 Act  23 to the territory that became that colony.  24 Both the 1803 and the 1821 Acts conferred upon the  25 provinces of upper and lower Canada the  26 extra-territorial jurisdiction to deal with matters  27 "... within any of the Indian territories or parts of  28 America not within the limits of either of the said  29 provinces"...  30 The plaintiffs say that the Acts of 1803 and 1821  31 apply to British Columbia because it was part of the  32 Indian territory, which the plaintiffs interpret to be  33 synonymous with the reserve.  And in my submission  34 this argument is unsound.  35 First, the phrase "Indian territory" is not used  36 in the Royal Proclamation in referring to lands  37 reserved to the Indians and it cannot be equated with  38 that reserve.  The phrases "Indian territory", "Indian  39 country", "interior country" and "upper country" were  40 all used interchangeably to refer to unsettled areas  41 frequented by Indians where the fur trade was carried  42 on.  The phrases carried with them no connotation of  43 an area having anything like fixed geographic  44 boundaries.  The areas covered by these phrases were  45 subject to change as the areas penetrated new regions.  46 For example, the framers of the Royal Proclamation  47 thought of the Indian country in the northwest as an 27442  Submissions by Mr. Goldie  They do it by -  And perhaps I  by  1 area around the Great Lakes where the French had  2 traded.  And the reference there is --  3 THE COURT:  Well, these two statutes don't include any  4 geographic boundaries, do they?  5 MR. GOLDIE:  Not in precise terms, my lord.  6 exception, if may put it that way  7 should --  8 THE COURT:  These are Imperial statutues?  9 MR. GOLDIE:  These are Imperial statutes, yes.  10 THE COURT:  It says in the first one:  11  12 " Whereas crimes and offences have been  13 committed in the Indian territories, are not  14 and other parts of America, not within the  15 limits of the provinces of Lower or Upper  16 Canada, or either of them, or of the  17 jurisdiction of any of the courts established  18 in those provinces, or within the limits of any  19 civil government of the United States"...  20  21 MR. GOLDIE:  Yes.  That's what I meant by exception.  22 THE COURT:  Yes.  All right.  23 MR. GOLDIE:  24 Q   Paragraph 161.  After I noted that the framers of the  25 Royal Proclamation thought of the Indian country in  26 the northwest as an area around the Great Lakes, I say  27 while it may be argued that British Columbia lay  28 within the Indian territories, it may be argued with  29 equal force that it lay within the other parts of  30 America referred to, and so no conclusion in favour of  31 either choice to the exclusion of the other can be  32 arrived at by reading the Acts of 1803 and 1821.  And  33 nor does it particularly matter.  Caledonia before it  34 became British Columbia was a British territory not  35 within the bounds of a colony.  36 And, finally, of course, the Acts themselves make  37 no reference to the Royal Proclamation, although if --  38 if my friends are correct, that they repeal by  39 implication a provision of the Proclamation, and that  40 is the provision at AA on the last page of the -- of  41 the proclamation, which expressly enjoins and requires  42 all officers whatever, as well military as those  43 employed in the management and direction of Indian  44 Affairs, to seize and apprehend all persons whatever  45 who stand charged with certain matters and who fly  46 from justice and take refuge in the said territory or  47 descend them under a proper guard to the colony where 27443  Submissions by Mr. Goldie  1 the crime was committed.  Now, the Acts of 1803 and  2 1821 expressly contradict that by saying that the  3 people who commit crimes within the territory should  4 be sent to Lower Canada.  5 Then I have a final submission at page 61 of the  6 summary.  As a final point on the existence of fixed  7 limits to the reserve, the Defendant Province submits  8 that it cannot have been the intention of the framers  9 of the proclamation to extend the reserve to the  10 Pacific Ocean.  That -- this is the substance of what  11 I earlier submitted.  That it would be contrary to the  12 intention of the Treaty of Paris to extend the  13 proclamation beyond the Mississippi or in any way in  14 the territory that was not clearly ceded and could be  15 definitely established as ceded.  16 And then at the bottom of page 61 I --  17 THE COURT:  I think we'll take the afternoon adjournment, Mr.  18 Goldie.  19 THE REGISTRAR:  Order in court.  Court stands adjourned for a  20 short recess.  21  22 (PROCEEDINGS ADJOURNED)  23  24 I hereby certify the foregoing to be  25 a true and accurate transcript of the  26 proceedings transcribed to the best  27 of my skill and ability.  28  29  30  31 Kathie Tanaka, Official Reporter  32 UNITED REPORTING SERVICE LTD.  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 27444  Submissions by Mr. Goldie  1 h2 Submissions by Mr. Goldie  2 (PROCEEDINGS RESUMED AT 3:20 p.m.)  3  4 THE REGISTRAR:  Order in court.  5 THE COURT:  Mr. Goldie.  6 MR. GOLDIE:  My lord, I am at page 61.  7 THE COURT:  Yes.  And this is the submission that even if the  8 reserve did not have our definite northern and western  9 boundaries, which we submit it did, these cannot --  10 this lack of definiteness does not include British  11 Columbia.  12 Paragraph 165.  The Province submits that, even if  13 the reserve can be construed as having in some part  14 indefinite western limits, British Columbia was not  15 included in the reserve as defined in the Royal  16 Proclamation.  17 Paragraph V of the Proclamation describes the  18 Indian Reserve carved out of the British acquisitions  19 in 1763 in the following words, and then I set out the  20 words which constitute the reserve.  And part of the  21 exceptions are the exclusion of the lands and  22 territories not included within the limits of our said  23 three new governments or within the limits of the  24 territory granted the Hudson's Bay Company.  As also  25 all the lands and territories of the sources of the  26 river which fall into the sea and northwest as  27 aforesaid.  That's not an exception.  28 There are ambiguities in the description of the  29 reserve in item V.  First, the lands and territories  30 are defined by exception as "all the lands not  31 included within..." Rupert's Land and the new colonies  32 of Quebec and east and west Florida.  33 The second part of the definition requires  34 identification of "the sources of the rivers which  35 fall into the sea from the west and northwest".  36 Dealing with the plaintiff's submission, the  37 Plaintiffs argue that British Columbia falls within  38 the reserve created by the first part of the  39 definition of the reserve:  that is to say all the  40 lands and territories excluding the three new colonies  41 and Rupert's Land.  That argument has been answered by  42 the Province in the section of this Summary dealing  43 with the extent of British holdings or claims to  44 sovereignty in North America in 1763, and the status  45 of British Columbia as terra incognita.  Britain  46 cannot be taken to have reserved to the Indians  47 territory over which it made no claim in 1763. 27445  Submissions by Mr. Goldie  1 And I add, nor could it have been known to have  2 been said colonies to which the prerogative Canada  3 apply.  4 Paragraph 170.  Further, to avoid absurdity, the  5 scope of lands and territories (which on a strict  6 construction could mean all the lands and territories  7 in the world other than those excepted) must be  8 limited by their context to those acquired under the  9 Treaty, as recited in paragraph A of the Proclamation.  10 I emphasize again, my lord, that the Proclamation is  11 the means of putting into effect the consequences of  12 the Treaty of Paris.  13 Then in paragraph 171.  The plaintiffs also argue  14 that British Columbia falls within the Reserve created  15 by the second part of the definition in the  16 Proclamation:  17  18 "...As also all the Lands and Territories lying  19 to the Westward of the Sources of the Rivers  20 which fall into the Sea from the West and North  21 West as aforesaid."  22  23 The lands reserved are limited to those lying "to  24 the westward" of those sources.  The northern boundary  25 of the Reserve may be determined by finding out which  26 of the sources lies furthest to the north, and drawing  27 a straight line west from its beginning.  A similar  28 exercise could be conducted to determine the southern  29 boundary.  The Reserve lands will lie between the two  30 lines.  31 Such a drawing of lines is not in the least degree  32 fantastical, nor is it a mere general way of speaking.  33 See in Paragraph F of the Royal Proclamation, which is  34 the government of west Florida which speaks of a  35 boundary:  "to the northward by a line drawn due east  36 from that part of the River Mississippi which lies in  37 31 degrees north latitude".  Governors' commissions  38 referred to in previous parts of this argument are  39 replete with similar descriptions.  40 It is submitted that when the northern boundary of  41 the lands lying to the west of the described rivers is  42 determined, and extended to the Pacific Ocean, that  43 line falls south of the 49th Parallel.  Accordingly,  44 the Reserve does not, even on this liberal  45 characterization of its western extent, include  46 British Columbia.  47 Paragraph V describes -- 27446  Submissions by Mr. Goldie  1 THE COURT:  What river do you choose as the most northerly?  2 MR. GOLDIE:  I think that was determined by Dr. Farley to be  3 either the St. Johns or the Penobscot.  4 THE COURT:  Yes, I remember.  All right.  5 MR. GOLDIE:  Either one has its origin below the 49th parallel.  6 And this goes on.  We are coming to that very point  7 now.  And paragraphs 175 or 176 state principles to be  8 applied.  9 177.  Applying that definition the river with the  10 most northerly headwaters which flows into the  11 Atlantic Ocean is the Penobscot, which we know today  12 to rise in Crescent Pond at 46 degrees 27 minutes  13 north.  That's Dr. Farley's calculation.  Well, not  14 his calculation, that's an accepted location.  15 If standard terminology for bodies of water is  16 ignored, the St. John River, which drains into the Bay  17 of Fundy rather than directly to the Atlantic, is the  18 stream with the most northerly headwater.  We know  19 today that the St. John rises in 48 degrees 5 minutes  20 north.  21 The most northerly point from which any stream  22 could reasonably be understood to "fall into the sea"  23 that is to say a point on the land from which a stream  24 could have its source, is Mt. Jacques Cartier, located  25 at the Gaspe Peninsula in 48 degrees 59 minutes north.  26 Mt. Jacques Cartier is the highest point in the  27 Peninsula.  28 For the purposes of establishing the northern  29 boundary of the lands lying to the west of the rivers  30 it is necessary to consider what the framers of the  31 Proclamation believed, and I mean with respect to the  32 geography of this area, in 1763.  Prior to 1763 the  33 watershed described in paragraph V formed the  34 international northeast boundary between French and  35 British holdings in North America, so perceptions  36 about that boundary may be relevant as well.  37 It is inconceivable that the framers of the  38 Proclamation could have had access to more than a  39 general knowledge of this rather remote area of  40 northeastern America.  Even the northeastern boundary  41 separating Canada from the British colonies between  42 what are now the state of Maine and the province of  43 New Brunswick was indefinite as late as 1783.  All  44 these references are to Dr. Farley's report.  45 Prior to 1763 the uncertainty was exacerbated  46 because national ambition led cartographers to push  47 the boundary north or south to expand the territory of 27447  Submissions by Mr. Goldie  1 their respective sovereigns.  2 Contemporary maps variously show the Penobscot  3 River rising at 45 degrees 40 minutes north, 46  4 degrees 30 mintues north, 47 degrees north, or 47  5 degrees 30 minutes north.  The Bowen map attached to  6 the Board Report shows the headwaters of the Penobscot  7 at 46 degrees 30 minutes north.  8 My lord, Mr. Farley's or Dr. Farley's overlay with  9 respect to the northeast drainage does the same thing  10 as he did with Mississippi and plots the location of a  11 number of the -- again to show the wide variation.  12 On the same maps, the source of the St. John River  13 ranges from 47 degrees 10 minutes north through 49  14 degrees north.  The Bowen map shows the headwaters of  15 the St. John River at 48 degrees north.  16 Boundaries between the British colonies and Canada  17 are not always shown.  Where they appear to be  18 indicated, the most northerly point of the boundary is  19 variously represented as 45 degrees, 48 degrees 15  20 minutes, 48 degrees 30 minutes, 49 degrees 15 minutes,  21 and so on.  The Bowen chart has a dotted line  22 following the Penobscot to its headwaters, then  23 extending due north to the St. Lawrence.  The  24 intersection with the St. Lawrence is at 48 degrees 30  25 minutes north.  However, the line may not have been  26 intended to represent a territorial limit.  27 A line drawn west from the most northerly source  28 of either the Penobscot or the St. John Rivers as  29 those sources which would be understood to be in 1763,  30 the sources which would be understood in 1763, would  31 extend the Reserve no farther north than 49 degrees  32 north.  The mainland of British Columbia lies to the  33 north of that parallel.  34 If anything can be taken from the northwest  35 boundaries between British and French territory in  36 North America tentatively represented on the maps of  37 the day, the northern limit of the Reserve might lie  38 as far north as 49 degrees 55 minutes.  The territory  39 claimed by the Plaintiffs in this Action lies above  40 the 53rd parallel.  41 And then in Regina vs. Sikyea, Mr. Justice Johnson  42 of the Northwest Territories Court of Appeal  43 considered the location of the "sources of the rivers  44 which fall into the sea from the west and northwest"  45 and found that the Northwest Territories lay to the  46 north and not to the westward of those rivers.  Based  47 on this finding and the finding that the area was 27448  Submissions by Mr. Goldie  1 terra incognita in 1763, Mr. Justice Johnson concluded  2 that the Royal Proclamation did not apply to the  3 Indians of the Northwest Territories.  And I remind  4 your lordship that the Supreme Court of Canada came to  5 the same conclusion with respect to Rupert's Land,  6 that that was the judgment of Mr. Justice Hall of Mr.  7 Narvay would have us disregard.  8 THE COURT:  I am sorry, Mr. Narvay.  9 MR. GOLDIE:  Well, my friends drew to your lordship's attention  10 an article by Mr. Narvay in which he said as a result  11 of a personal communication from Mr. Hall that  12 regarded his judgment in that case as erroneous.  Even  13 if he did, there were eight other judges of that  14 court.  15 THE COURT:  What's the name of that case?  16 MR. GOLDIE:  Sigeareak.  I have some trouble pronouncing it, my  17 lord, but --  18 THE COURT:  That's not bad, I have trouble remembering it.  19 Which is worse?  20 MR. GOLDIE:  Sigeareak, it's in the plaintiff's authorities I  21 believe.  22 THE COURT:  That's good enough, thank you.  23 MR. GOLDIE:  I will give your lordship the citation to it.  24 In summary, British Columbia lies north, and not  25 west of the rivers which flow from the west and  26 northwest into the Atlantic Ocean.  27 Now, paragraph 190.  I say in some parts of their  28 argument and I perhaps should stand corrected, in some  29 parts of the summary of their argument the Plaintiffs  30 reject the accepted eastern boundary of the reserve  31 and argue that the boundary described by "the sources  32 of the rivers which fall into the sea from the west  33 and northwest" cannot be equated with the Appalachian  34 line.  The Plaintiffs assert that the rivers referred  35 to include those draining into the Gulf of St.  36 Lawrence.  37 Now, I think -- I think that issue has been  38 resolved, my lord.  I believe the Plaintiffs do accept  39 that the eastern boundary is the Appalachian line.  40 In any event, the expression used in paragraph V  41 of the Proclamation refers to "the  42 aforesaid".  The previous reference to the sea occurs  43 in paragraph U -- that the antecedent and then to the  44 sea as aforesaid is in U and it's heads are sources of  45 any of the rivers which fall into the Atlantic Ocean.  46 So it is the Atlantic Ocean we are talking about.  The  47 Plaintiffs say, at least we understood them to say, 27449  Submissions by Mr. Goldie  1 that the framers of the Royal Proclamation did not  2 distinguish between the Gulf of St. Lawrence and the  3 Atlantic Ocean.  They suggest that Dr. Farley's  4 distinction between the gulf and the ocean is  5 misleading in the sense that it is based on  6 "contemporary hydrological" definitions.  The fallacy  7 inherent in this argument is apparent on a review of  8 the Bowen map of 1763 which was relied upon by the  9 Board of Trade and sent to the King for his  10 consideration.  11 MR. RUSH:  I don't think there is any evidence that it was  12 relied upon by the Board of Trade.  13 MR. GOLDIE:  Well, the evidence, my lord, of course is that the  14 Board of Trade sent it to the King and the reliance  15 derives from the fact that the Board would not send  16 something unreliable to the King.  That's the  17 submission that I would make.  18 MR. RUSH:  Well, if it is an argument, my lord, I don't — I  19 can't take contest with it but, if it is a factual  20 statement, I don't think the evidence bears it out.  21 MR. GOLDIE:  Your lordship has my position on that.  22 The fallacy is that I have repeated -- I have  23 repeated that that map shows the Gulf of St. Lawrence  24 as a body of water distinct from the broad Atlantic  25 Ocean.  The Gulf is surrounded by land on all sides  26 except for two narrow channels.  27 THE COURT:  I am having trouble with that.  Oh, you are talking  28 about --  29 MR. GOLDIE:  It's part of — it is — the part that I am  30 referring to is not on the part that's up on the  31 board.  32 THE COURT:  I am looking at the northeast drainage and I see the  33 Gulf St. Lawrence there and what are you talking  34 about, the two narrow channels?  35 MR. GOLDIE:  On either side.  36 THE COURT:  Yes, all right.  37 MR. GOLDIE:  Narrow is relative, my lord.  38 THE COURT:  Not by British Columbia standards.  39 MR. GOLDIE:  It's wide by my standards but in terms of sailing  40 vessels that are beating against the wind it might not  41 be.  42 The Plaintiffs argue that the Proclamation line  43 cannot be the Appalachian watershed because Labrador  44 was part of the Reserve and does not fall to the  45 westward of the Appalachian Mountains.  This  46 submission ignores the dual aspect of the definition  47 of the Reserve.  The Reserve as defined consisted not 27450  Submissions by Mr. Goldie  1 only of land to the westward of the rivers but also of  2 lands not included in the three new colonies and  3 Rupert's Land.  The latter aspect of the definition of  4 the Reserve encompasses Labrador and the corridor  5 between Rupert's Land and Quebec, as ceded.  6 The reference to the Sigeareak case is,  7 S-i-g-e-a-r-e-a-k vs. the Queen, 1966 Supreme Court  8 Report, 645.  9 THE COURT:  1966.  10 MR. GOLDIE:  Supreme Court Report, 645, and it's found in the  11 Plaintiffs' authorities, series 4, volume 23 tab 5.  12 THE COURT:  How is that spelled?  13 MR. GOLDIE:  S-i-g-e-a-r-e-a-k vs. the Queen and it was a  14 judgment of the full court given by Mr. Justice Hall.  15 And he stated at page 650:  16  17 "The Proclamation specifically excludes  18 territory granted to the Hudson's Bay Company  19 and there can be no question that the region in  20 question was within the area granted to  21 Hudson's Bay Company.  Accordingly, the  22 Proclamation does not and never did apply to  23 the region in question.  The judgments to the  24 contrary are not good law."  25  26 And going to page 71 of my summary, item C, By  27 its Terms the Royal Proclamation did not Apply to the  28 Indians of British Columbia.  The Defendant Province  29 submits that by its terms the Royal Proclamation  30 applied to a limited number of Indian tribes which did  31 not include the Indians of British Columbia.  32 All of the Indian provisions of the Royal  33 Proclamation set out at paragraphs S through Y refer  34 to "the said Indians".  My lord, that -- the  35 provisions in question are introduced by this preamble  36 and whereas it is just and reasonable and essential to  37 our interest in the security of our colonies that the  38 several nations or tribes of Indians with whom we are  39 connected and who live under our protection should not  40 be molested or disturbed in the possession of such  41 parts of our dominions and territories as not having  42 been ceded to or purchased by us a reserve to them or  43 any of them as their hunting grounds".  My submission,  44 that is a very specific reference and it does not  45 include the Indians of British Columbia.  The Indians  46 contemplated -- I am at 196, my lord, the Indians  47 contemplated by paragraph S are those nations with 27451  Submissions by Mr. Goldie  1 whom the King was connected and who lived under his  2 protection.  In other words, the preamble refers to  3 Indians who are subjects of King George III.  The  4 Board of Trade in its supplementary report of August  5 5, 1763, described the Indians to whom the  6 Proclamation was to apply as "those Indian Nation  7 Subjects of your Majesty".  8 Now, the Indians of British Columbia were not in  9 fact and were never considered by anyone at this time  10 to be subjects of his Majesty in 1763.  11 Furthermore, the Indians referred to in paragraph  12 S were those under the protection of the British  13 Crown.  The tribes of Indians in British Columbia were  14 not living under the King's protection in 1763:  they  15 had no access to the King's courts, magistrates or  16 military commanders.  And -- well, that's simply a  17 fact.  The King was quite unable then or in the  18 contemplated future to ensure that Indians living on  19 the west coast of North America were not "molested or  20 disturbed in the Possession" of their lands, which  21 according to the preamble is the whole immediate  22 purpose of the ensuing section.  The preamble,  23 moreover, applied to territory where Indian lands  24 could be ceded to the Crown, in that it promised  25 protection to lands "not having been ceded to or  26 purchased by us".  Cession of Indian lands to the  27 Crown was not a prospect in the British Columbia of  28 1763.  29 That the illusory nature of the premise that the  30 Indians of British Columbia fell under the protection  31 of King George in 1763 can be shown by considering the  32 corollary:  subjects under the protection of the King  33 owe allegiance to him.  The Indians of British  34 Columbia were not bound to obey and serve King George  35 in 1763.  The reference there is to Calvin's case  36 under tab 199.  This is from the English reports and  37 it's --  38 THE COURT:  This is the case of Calvin.  39 MR. GOLDIE:  This is the case of — yes, I think that's right.  40 It starts off midway down the page:  41  42 "1(a) Ligeance is a true and faithful obedience of  43 the subject due to his Sovereign.  This  44 ligeance and obedience is an incident  45 inseparable to every subject:  for as soon as  46 he is born he oweth by birth-right ligeance and  47 obedience to his Sovereign." 27452  Submissions by Mr. Goldie  1  2 And then a number of lines further down after a Latin  3 quotation, the words and -- and just below where the  4 side lining begins:  5  6 "And therefore it is holden 20 H. 7.8..."  7  8 Chapter 8 I suppose:  9  10 "...that there is a liege or ligeance between  11 the King and the subject."  12  13 And then about five lines further down:  14  15 "Ligeance is the mutual bond and obligation  16 between the King and his subjects, whereby  17 subjects are called his liege subjects, because  18 they are bound to obey and serve him; and he is  19 called their liege lord, because he should  20 maintain and defend them."  21  22 The use -- well, the Indians of British Columbia were  23 not only not subjects to the King, they were not bound  24 to obey or serve him, nor was he bound to protect  25 them, nor could he.  26 The use in paragraph S of the words "The several  27 Nations or Tribes" suggests that a limited number of  28 distinct tribes were affected by the Proclamation and  29 could be so identified.  A review of the documents of  30 the day indicates this is so.  Approximately three  31 weeks before the Proclamation was issued, Halifax had  32 instructed the Board to prepare a management plan  33 dealing with Indian Trade in a general way.  The  34 Board's first attempt was followed by a second.  This  35 was sent to Sir William Johnson, Superintendent of  36 Indian Affairs for the Northern District, on July 10,  37 1764.  The letter indicates that the Board intended to  38 have the Plan put before Parliament, although that  39 never happened.  And that is evident from the document  40 itself which is Exhibit 1159-90B.  41 The plan was much more ambitious than the Royal  42 Proclamation, it was never fully implemented.  Sir  43 William Johnson from the year 1766 to 1768 implemented  44 the plan in part by restricting trade with Indians to  45 trading posts, and imposing a tariff.  Complaints by  46 the merchants about the restrictions, and the expense  47 of administering the plan, led the Imperial Government 27453  Submissions by Mr. Goldie  1 to abandon it.  2 After the passage of the 1774 Quebec Act, which  3 gave Quebec control of the fur trade in the Reserve,  4 the Plan was revived to some extent.  Governor  5 Carleton was instructed to have the Legislative  6 Council enact ordinances implementing the Plan, and a  7 copy of it was enclosed with his instructions.  And  8 that's found at tab 202, and it's paragraph 32 on page  9 428.  10 Now, the model that he was to follow was not the  11 model of the Proclamation but the model of the Plan  12 proposed in 1764 which was enclosed and which would  13 serve as a guide in a variety of cases in which it may  14 be necessary to make provision by law for that  15 important branch of the American commerce. That, my  16 lord, is Carleton's instructions of 1775, the 3rd of  17 January, and that was in part complied with with an  18 ordinance that was passed in 1777, and that is under  19 the next tab, and the relevant part is Article 3 in  20 which "from and after the publication of this  21 ordinance it shall not be lawful for any person to  22 settle in any Indian village or in any Indian country  23 within this province without a licence and writing  24 from the governor".  Your lordship will bear in mind  25 that this was the expanded province that ran down to  26 the Mississippi.  That -- and I note that in paragraph  27 204 that ordinance was enacted following the Quebec  28 Act, and it applied to the boundaries of Quebec which  29 then stretched to the Ohio country.  30 The "Plan for the future management of Indian  31 affairs" ends with two appendices.  Appendix A is a  32 "List of Indian Tribes in the Northern District of  33 North America". Appendix B is a "List of Indian Tribes  34 in the Southern District of North America".  35 The appendices to the 1764 plan list 54 tribes.  36 These included staunch British allies such as the  37 Mohawks, tribes of fluctuating loyalty like the  38 Delawares, as well as traditional French supporters  39 such as the Ottawas and the Chipeweighs of the Great  40 Lakes region.  41 My lord, it's my submission that the Royal  42 Proclamation had a specific application to those  43 tribes who were disaffected at the time and that the  44 Crown wished to placate, that was the view that Chief  45 Justice Marshall took.  The plan, on the other hand,  46 is much more ambitious and extends to tribes that had  47 very little to do with the problems of the frontier 27454  Submissions by Mr. Goldie  1 country below the Great Lakes and to the west of the  2 American colonies where the difficulties were.  I  3 shouldn't say below the Great Lakes, it extended  4 from -- over from below the Great Lakes to the east of  5 the Great Lakes over to New York.  6 Continuing at 207.  For the southern district 12  7 tribes were included.  For the northern district the  8 Appendix listed 42 tribes to be affected by the Indian  9 provisions of the Royal Proclamation.  Proceeding  10 north to south the tribes ranged in location from the  11 Algonkins between Lake Huron and Rupert's Land to the  12 Shawanese living on the fringes of Pennsylvania and  13 Maryland.  From east to west the tribes ran from the  14 Micmacs of Nova Scotia to the Sioux, whose hunting  15 grounds were situated southwest of Lake Superior.  It  16 was these tribes of Indians whose freedom from  17 molestation or disturbance was "...essential to our  18 Interest, and the Security of our Colonies..."  My  19 lord, I have to say this:  That the -- it is not  20 necessarily the case that all of those tribes who were  21 those referred to in S, the inclusion of tribes in the  22 plan does not necessarily mean that they were referred  23 to in the Proclamation, but they -- the tribes in the  24 plan certainly included those whose freedom from  25 molestation or disturbance was essential to our  26 interest and the security of our colonies.  27 None of the tribes listed for the northern  28 district was located west to the Mississippi River,  29 with one exception.  Maps of the mid-18th century  30 locate the Sioux straddling the headwaters of the  31 Mississippi, with the nation usually divided into  32 "western Sioux" and "eastern Sioux".  The  33 cartographers located the former group west of the  34 river between about 44 degrees and 47 degrees north.  35 The eastern Sioux were invariably placed east of the  36 river between about 45 degrees and 48 degrees north.  37 An example of this is the Bowen map enclosed with the  38 Board of Trade's report of June 8, 1763, which has a  39 printed note "eastern Sioux" at about 46 degrees north  40 between the eastern bank of the Mississippi and a  41 point just south of Lake Superior.  The exhibit  42 references are firstly to the Bowen map, part of which  43 is on the board, and a second is to the historical  44 atlas.  And I think -- yes, there is an earlier  45 reference to the historical atlas which is coloured  46 and tab 145.  I won't take your lordship's time up  47 with it now. 27455  Submissions by Mr. Goldie  1 Johnson's report to the Board of Trade of November  2 13, 1763, referred to the Sioux as a wandering people  3 who were little known to the British.  Johnson made no  4 claim that those Sioux who hunted or wandered to the  5 west of the Mississippi River were subjects who came  6 under his jurisdiction.  And the references there are  7 to Johnson to the Board of Trade, November 13, 1763.  8 The Board followed Johnson's report closely and  9 included the Sioux in Appendix A as one of the tribes  10 in the northern district.  This was a sensible course,  11 because the historic hunting grounds of the Sioux lay  12 in part to the east of the Mississippi River, as noted  13 in reference to the maps above.  It is likely, in my  14 submission, that the plan referred only to the eastern  15 Sioux.  16 Paragraph 211.  The tribes of Rupert's Land (for  17 example the Crees, Blackfoot, Ojibwas, Chipewyans,  18 Assiniboines) were not listed in the plan.  Nor,  19 obviously, were any of the tribes residing in British  20 Columbia.  These tribes of Rupert's Land and the  21 unknown tribes in British Columbia were neither  22 essential to the King's interest nor to the security  23 of the colonies.  24 Support for the view that the Proclamation applied  25 to a closed number of Indian tribes may be found not  26 only in the text of Preamble "S" but also in the  27 reasons of the Judicial Committee in St. Catherines  28 Milling.  The Committee held that the Indian  29 provisions had been "made by the Royal Proclamation in  30 favour of all Indian tribes then living under the  31 sovereignty and protection of the British Crown".  I  32 interject here that the value of the judgment in St.  33 Catherines Milling not only lies in the court that  34 pronounced it but in the very extensive arguments that  35 took place in the courts below, three courts below,  36 and which a great deal of historical evidence was put  37 before the courts.  38 Paragraph 213.  In support of their argument that  39 the Proclamation applies to the Indians of British  40 Columbia, the Plaintiffs have asserted that the  41 Proclamation is prospective, and therefore intended to  42 include any tribes coming into connection with the  43 British Crown in future.  Reliance is placed in "S" on  44 the phrase "are reserved to the said Indians, or any  45 of them".  The plaintiffs submit that the reference to  46 "any of them" indicates that the land was reserved for  47 the Indian race at large.  The words "or any of them" 27456  Submissions by Mr. Goldie  1 are taken as signalling the Crown's indifference to  2 the ebbing and flowing of the nomadic Indians in North  3 America; to the protestations of amity in the Treaty  4 of Paris which would be disregarded by claims of  5 sovereignty extending beyond what was ceded in that  6 Treaty, and to the constitutional limitations which  7 would be breached if the Proclamation was applied to  8 future settled colonies.  I might interject here, my  9 lord, that when we come to Part 7, I am going to be  10 referring to some of the treatises or one treatise in  11 particular introduced by the Plaintiff which will give  12 some indication to your lordship of the nature of the  13 ebbing and flowing of the nomadic Indians.  14 Paragraph 214.  This interpretation by the  15 plaintiffs of the phrase is contrary to the plain  16 meaning of the words.  The phrase is a descriptive one  17 designed to ensure that the Proclamation applied both  18 to lands which had been reserved to the Indians  19 generally (such as the Reserve) and lands which had  20 been reserved to some of them only (such as land  21 described in treaties entered into with individual  22 tribes prior to 1763).  In my submission, it is  23 intended to negate the implication that the protection  24 from molestation or disturbance could be invoked only  25 when the whole of the area is molested or disturbed.  26 I mean by that this, my lord:  What is being done here  27 is to secure for the benefit of the security of the  28 colonies it is deemed important that the nations or  2 9 tribes with whom we are concerned and who live under  30 our protection should not be molested or disturbed.  31 The words "or any of them" was intended to ensure that  32 that protection was extended to them individually as  33 well as to the general provision for the reserve as a  34 whole which was subsequently created.  35 I say on a strict grammatical interpretation "or  36 any of them" must refer to the "said Indians", who are  37 defined by the preamble as the Indians then living  38 under the protection of the British Crown.  39 And then at paragraph 216, I say:  As a final  40 point, the Province refers to the purpose of the  41 Indian Provisions of the Proclamation.  The Plaintiffs  42 have argued that the Royal Proclamation must be  43 construed in light of the mischief it was intended to  44 address:  past and threatened attacks on colonial  45 settlers by Indians dissatisfied with encroachment  46 upon their territories.  The historical record leading  47 up to the issuance of the Proclamation is replete with 27457  Submissions by Mr. Goldie  1 references to concerns about native discontent and  2 disaffection and with the resulting prospect of  3 uprisings.  And as your lordship knows the news of  4 what is called Pontiacs uprising arrived in London  5 almost simultaneously with the final approval of the  6 Royal -- of the Proclamation.  The continued threat to  7 colonial security posed by the Six Nations and other  8 Indians located in the regions in and adjacent to the  9 American colonies was an immediate and pressing  10 problem in 1763.  The Indians of British Columbia were  11 not part of the problem, and accordingly the Royal  12 Proclamation should not be construed to apply to them.  13 And then I add this:  Conversely there were no known  14 settlers who might molest and disturb the Indians of  15 British Columbia in 1763.  I will be making a final  16 submission as to why the Proclamation became important  17 in a particular area of Canada and I will come back to  18 that later, but that particular area of Canada is what  19 became known as Upper Canada and is largely Ontario,  20 that part of Ontario, which at one time formed part of  21 the old province of Quebec.  22 Paragraph 217.  In August of 1764 Sir William  23 Johnson described the Crees and other Indians from  24 northwest of Lake Superior as "rather remote to give  25 us much trouble".  26 In conclusion, the Defendant Province submits  27 that, on its terms, the Royal Proclamation did not  28 apply to the Indians of British Columbia.  Now, the  29 next deals with the proposition that the Proclamation  30 followed the flag and that's language which has been  31 used on a number of occasions.  And this deals with  32 that.  33 The Plaintiffs argue that the Proclamation  34 followed the British flag because a Proclamation is  35 like a statute which is "always speaking" and deemed  36 to be applicable to new circumstances.  This argument  37 does not take into account the inapplicability of  38 prerogative instruments to settled colonies such as  39 British Columbia.  Nor does it take into account the  40 established practice when prospective application of  41 instruments was intended.  42 When it was intended by the Imperial Crown or by  43 Parliament, the proclamations, acts, or letters patent  44 were to apply to after-acquired colonies, that  45 prospective intention was expressly stated.  A common  46 expression used was:  "Any of the colonies or  47 plantations in America which now or hereafter may be 2745?  Submissions by Mr. Goldie  1 in the possession or under the dominion of his  2 Majesty".  This technique -- this drafting technique  3 had been used in many statutes applying to the empire  4 prior to 1763, including the Act of Supremacy (1559),  5 the Navigation Acts (1663 and 1696) and Molasses Act  6 of 1733.  The references there, my lord, are gathered  7 together under tab 220, the first being the Supremacy  8 Act and that's of 1559, and the drafting provision is  9 found in paragraph 16 or Roman XVI which is page 111  10 or four pages in.  And the substantive provision is  11 first set out "that no foreign prince, et cetera,  12 shall at any time after the last day of this Cession  13 of parliament use, enjoy or exercise any manner of  14 power, jurisdiction, superiority, et cetera, et cetera  15 within this realm or within any other Your Majesty's  16 dominions or countries that now be, or hereafter shall  17 be, but from thenceforth the fame shall be clearly  18 abolished out of this realm, and all other Your  19 Highness dominions forever".  The statute, the  20 Navigation Act, which is 1161-131A, the provision is  21 on the first page left-hand column, the substantive  22 provision is that after a certain date goods -- no  23 goods or merchandise shall be imported into, or  24 exported out of, any colony or plantation to His  25 Majesty in Asia, Africa or America, belonging, or in  26 his possession, or which may hereafter belong unto, or  27 be in the possession of His Majesty, et cetera, and so  28 on.  The words are clear when the draftsman wants to  29 apply the act to after-acquired territories he has at  30 hand a drafting technique which is well recognized by  31 Parliament.  32 The 1761 Commission of Charles Pinfold, Governor  33 of the Island of Barbadoes, includes an express  34 reference to future acquisitions.  And the reference  35 there, my lord, is to the judgment in Campbell and  36 Hall and it's on the second complete page, page 246.  37 The reference to the Commission of Charles Pinfold  38 starts about a third of the way down the page  39 beginning with the words:  40  41 "George the third by the grace of God, of Great  42 Britain, France and Ireland, king, defender of  43 the faith.  To our trusty and well-beloved  44 Robert Melville, esq. greeting:  whereas we did  45 by our letters patent under our great seal of  46 Great Britain, bearing date at Westminster, the  47 fourth day of April, in the first year of our 27459  Submissions by Mr. Goldie  1 reign, constituted and appoint Charles Pinfold,  2 esq.  captain-general, and governor in  3 chief..."  4  5 et cetera, et cetera, and then he names a series of  6 islands.  7  8 "...commonly called or known by the name of our  9 Carribee islands lying and being to the  10 windward of Guadaloupe, and which then were or  11 after should be under our subjection and  12 government, during our will and pleasure..."  13  14 And then so that even in Proclamation -- well, not  15 reason in Proclamation, that's a prospective clause in  16 the Royal Proclamation which is almost contemporaneous  17 with that of the Proclamation of 1761.  18 Paragraph 222.  Following the Royal Proclamation  19 of 1763, "hereafter clauses" or "prospective clauses"  20 appeared in a number of statutes, the best known of  21 which was the Stamp Act of 17 65.  And that's under tab  22 222 in the yellow book.  And the language in question  23 is what we would say is the preamble but which is not  24 only the preamble but which is also the substantive  25 charging section, it's towards the end of the first  26 complete paragraph:  27  28 "That from and after the first day of November,  29 one thousand seven hundred and sixty-five there  30 shall be raised, levied, collected, and paid  31 unto His Majesty, his heirs, and successors  32 throughout the colonies and plantations in  33 America which now are, or hereafter may be,  34 under the dominion of his Majesty..."  35  36 Et cetera.  37 If the framers of the Proclamation had intended  38 the Indian provisions to "follow the flag", precedent  39 suggests that they would have included one or more  40 hereafter clauses in the Proclamation.  This is  41 particularly so in light of the fact that Attorney  42 General Charles Yorke reviewed the Proclamation to  43 ensure that it was conformable to law, and made  44 several changes to the draft.  Yorke in my submission  45 was very aware of the drafting issue involved.  As  46 Solicitor General in 1759, he had been asked whether  47 the Navigation Acts applied to the recently conquered 27460  Submissions by Mr. Goldie  1 island of Guadeloupe.  He advised in the affirmative  2 on the basis of the hereafter clause included in those  3 acts.  And the references are set out, my lord, but  4 would you please delete the last one, Exhibit 1159-83.  5 Paragraph 224.  British attorneys general of the  6 day were aware that, in the absence of a hereafter  7 clause, doubt could arise over whether a statute  8 applying generally to colonies should or should not be  9 confined to existing colonies.  That problem had  10 arisen with respect to the applicability to the North  11 American colonies of the 1585 statute against Romam  12 Catholic priests.  The document is extracted under --  13 from Exhibit 1161-136 which is one of Dr. Greenwood's  14 footnote references and the language in question which  15 is taken, if I remember correctly, from an opinion, is  16 found right at the end, the last six lines of the  17 middle paragraph, and after a recital of the  18 particular issue, the words in question "that had  19 intended to all the dominions the Queen had when it  2 0 was made but some doubt hath been made whether it  21 intended to extend whether dominions acquired after as  22 the plantations have been".  My submission is that if  23 the Royal Proclamation was one that was intended to  24 follow the flag and to provide legislative  25 arrangements as colonies were acquired that intention  26 would have been reflected in the appropriate language.  27 It is not.  28 In addition, the limitation on the King's  29 prerogative powers in respect of settled colonies was  30 well known in 1763.  To treat the Royal Proclamation  31 as prospective is to assume, in order that it would  32 not be ultra vires in its future application, that all  33 future colonies would be conquered or ceded.  There is  34 no factual basis for such an assumption.  35 In summary, the Defendant Province submits that  36 the framers of the Proclamation did not intend its  37 provisions to apply to after-acquired colonies such as  38 British Columbia.  I say, and I will come back to this  39 in my final summary, it was dealing as it states with  40 an immediate problem in a particular area.  Next major  41 submission:  The Royal Proclamation does not  42 Recognize a General Right of North American Indians  43 to Ownership of all lands not Surrendered to the  4 4 Crown.  45 The Plaintiffs have pleaded that the Royal  46 Proclamation recognizes and confirms a number of  47 general principles, these being that all lands in 27461  Submissions by Mr. Goldie  1 North America belong to the Indians until they  2 surrender them to the Crown in a public forum.  That  3 assertion is based on the interpretation of the Indian  4 provisions of the Royal Proclamation which the  5 Defendant Province submits is erroneous on a careful  6 reading of the words of the Proclamation and the  7 historical documents.  First submission, The Indian  8 Provisions did not Apply to all British Colonies in  9 North America in 1763.  And of course it is essential  10 to my friend's submission that there be a blanket of  11 application of the Proclamation if the submission that  12 he makes in the pleadings, not the submission but the  13 allegation in the pleadings, are to be brought home.  14 And our answer to that is:  The Plaintiffs'  15 argument that the Royal Proclamation is the source of  16 general principles, which followed the flag and  17 applied to all British acquisitions in North America,  18 is substantially undermined by the incontrovertible  19 fact that the Indian provisions of the Proclamation  20 (paragraphs S to Y) did not apply to all of the  21 British colonies in North America in 1763.  The  22 evidence indicates that Newfoundland, Nova Scotia, and  23 Rupert's Land were not subject to those provisions.  24 Now, the Prohibition on Land Grants which -- and I am  25 going to be following the Proclamation, my lord, if we  26 could have that in front of us.  27 Paragraphs T and U prohibit governors from making  28 land grants beyond certain bounds.  T is the  29 prohibition directed to the Governor or Commander in  30 Chief of any of our Colonies of Quebec, East Florida  31 or West Florida.  And to the Governor and Commander in  32 Chief of any of our other colonies or plantations in  33 America do presume for the present, and until our  34 further answer be known to grant Warrants of Survey.  35 The prohibition could not extend to Newfoundland  36 because the governor of that colony was not empowered  37 to make land grants.  It could not apply to Rupert's  38 Land because that colony did not have a governor as  39 such.  In addition, it was originally intended that  40 the provisions in paragraphs T and U would be  41 implemented by sending letters of instruction to the  42 governors of the old British colonies.  It was not the  43 practice of the Crown to issue instructions to the  44 Governor of the Hudson's Bay Company because it was a  45 semi-autonomous trading corporation, not a Royal  46 province.  47 Now, I wish to refer to an authority which is 27462  Submissions by Mr. Goldie  1 under tab 229, well, that's following the binder --  2 blue binder in that tab, is Egremont's letter to the  3 Board of Trade of July 14, 1763.  4 THE COURT:  22 9.  5 MR. GOLDIE:  Beg your pardon, my lord?  6 THE COURT:  22 9.  7 MR. GOLDIE:  229, the first document is the Proclamation.  8 THE COURT:  Yes.  9 MR. GOLDIE:  And then the second is Egremont acknowledging -- I  10 shouldn't say acknowledging, he is dealing with the  11 report of the 8th of June, and he states that it has  12 been laid before his Majesty and the King approves  13 various parts in it.  And then at page 109, and this  14 is in support of my allegation that -- my submission  15 that they weren't talking about Newfoundland or  16 Rupert's Land, fourth line down:  17  18 "And your Lordships will also prepare Drafts of  19 such Instructions, as shall be necessary, for  20 the several governors of the ancient Colonies,  21 for preventing their making of any New Grants  22 of Lands, beyond certain fixed Limits to be  23 therein laid down for that purpose; and in  24 these Instructions as well as in Those for the  25 New Governors, your Lordships will insert a  26 Clause directing most particular Regard to be  27 had, in the granting of any Lands, to Officers  28 and Soldiers, more especially Those residing in  29 America, who have served so faithfully and  30 bravely during the War, and who may be now  31 willing to undertake any New Settlements under  32 proper Conditions."  33  34 It's my submission that clearly Egremont was  35 talking about instructions to the people who had the  36 power to deal with lands.  I also note that the  37 instructions were to include directions with respect  38 to providing lands for officers and soldiers of the  39 army who settle in America, a proposition that would  40 have been guarded as fantastic in its application to  41 Rupert's Land.  The first settlement in Rupert's Land  42 did not occur until 1817.  And I will make a further  43 reference to that.  44 Prohibition against further private purchases.  45 Paragraph Y contains a prohibition against the private  46 purchase of Indian lands within the colonies.  The  47 evidence indicates that paragraph Y did not apply to 27463  Submissions by Mr. Goldie  1 Nova Scotia, Newfoundland or Rupert's Land.  2 Unlike the instructions sent to governors of  3 Quebec, Murray and Carleton, the instructions to the  4 Governor of Nova Scotia contained no direction to  5 comply with the Indian provisions in the Royal  6 Proclamation.  In 1762, Lieutenant Governor Belcher of  7 Nova Scotia attempted to implement the Indian land  8 policy suggested in Egremont's circular letter of  9 December, 1761.  Belcher, my lord, that was one of the  10 predecessors to the Proclamation when the governors of  11 the American colonies were urged to mend their ways or  12 the ways of the settlers, but with respect to the  13 Indians.  Belcher issued a Proclamation reserving to  14 the Indians about one-half of the colony's northern  15 and eastern coast line.  The Board of Trade  16 reprimanded Belcher for this action and in 1764  17 disallowed any claims of the Indians to land in Nova  18 Scotia.  Many Historians hold the view that the  19 British government never recognized Indian title in  20 Nova Scotia.  And the reference there is firstly to  21 the transcript and it identifies the nature of the  22 footnote reference which is Mr. Stagg's work on  23 Anglo-Indian relations.  And Dr. Greenwood simply  24 summarizes what evidence there is with respect to the  25 application and he's asked the question, at line 21:  26  27 "Q  Is there any evidence of any acknowledgement  28 that perhaps the Royal Proclamation did have  29 some application here?"  30  31 That's Nova Scotia:  32  33 "A  Not to my knowledge, unless one looks at the  34 plan..."  35  36 That's the 1764 Plan:  37  38 "...and the plan includes in some of its tribes  39 the Micmacs, for example, that were in what is  40 now New Brunswick, so to that degree the  41 documentation does refer to Indian tribes, but  42 the plan was mainly concerned with trade, not  43 lands —"  44 Q  And was there any instruction to the governor  45 of Nova Scotia comparable to that, to the  46 governor of Quebec to implement the plan or any  47 part of it? 27464  Submissions by Mr. Goldie  1 A  No, there was not."  2  3 And then turning to the excerpt from Mr. Stagg's  4 work, he introduces the discussion at page 270 in the  5 last paragraph on that page:  6  7 "Into this atmosphere of relative tranquility  8 between natives and colonists which existed in  9 Nova Scotia in the early part of 1762..."  10  11 And then he describes what the instructions from the  12 King from Egremont of 1761, and at the top of that  13 page this is the comment that Stagg makes on the  14 application of that circular letter in Nova Scotia:  15  16 "To many in Nova Scotia the advice in the  17 document must have seemed inappropriate,  18 perhaps even absurd.  Native rights to large  19 tracts of land in Nova Scotia had never been  20 acknowledged by Britain, or by its official and  21 administrators to exist.  Secondly, no real  22 threat appeared then to exist to the province  23 from Indians living within or beyond Nova  24 Scotia's boundaries.  What seemed patently  25 obvious about the king's Instruction was that  26 it was designed to meet exigencies in other  27 parts of British territories on the continent -  28 not in Nova Scotia."  29  30 And then he sets out what Belcher, the Lieutenant  31 Governor did.  And he says he managed to alienate most  32 of the executive council.  And next page he says:  33  34 "In the early spring of 1762, Belcher set about  35 his task of complying with the Royal  36 Instruction by conducting what he termed an  37 "Inquiry" into the "Nature" of the pretentions  38 of the Indians."  39  40 And up in the next page, the results of his search,  41 and then the next paragraph:  42  43 "To conform with his interpretation of the  44 intent of the Royal Instruction, Belcher issued  45 a Proclamation on 4 May 1762 to reserve the  46 seacoast area described in the 1754 - 1755  47 Indian requests for lands." 27465  Submissions by Mr. Goldie  1  2 And over the page at 274:  3  4 "On 3 December 1762 the Board drafted a series  5 of reproachful Minutes for transmittal to  6 Belcher... their Lordships expressed their  7 'greatest Astonishment and concern' over the  8 lieutenant-governor's 'impudent' reservations  9 of lands for Indians to the exclusion of his  10                     Majesty's other subjects."  11  12 And the Board minute -- and this is at the bottom of  13 page 274:  14  15 "The Board Minute further explained that the  16 Proclamations of 4 May 1762 was 'not warranted  17 by His Majesty's Order in Council of the 9  18 December 1761. '  The latter document, the Board  19 stated, referred 'only to such Claims of the  20 Indians as had heretofor at long usage admitted  21 and allowed on the part of government and  22 confirmed them by solumn Compacts."  23  24 I suppose by compacts they mean treaties.  And  25 then he notes that Belcher, I say, was reprimanded for  26 doing that.  27 Now, Stagg argues that the language of the  28 Proclamation could apply to Nova Scotia, I am  29 referring to what was done.  30 Paragraph 232.  The only indication that the Royal  31 Proclamation had any application to Nova Scotia is the  32 inclusion in Appendix A of the Indian management plan,  33 that's of 1764, of the main tribes located in that  34 colony.  And I have noted already the plan was  35 primarily concerned with trade rather than land.  36 The publishing of the Proclamation in Nova Scotia  37 does not indicate that the Indian provisions applied  38 to the colony.  The Proclamation's publication was  39 warranted regardless of it publicized in the  40 Quebec-Nova Scotia boundary, and so on.  41 The colony of Newfoundland was a fishing station,  42 subject to prohibitions against settlement and without  43 colonial civil government the usual sense.  Reference  44 there is to the Labrador Boundary case.  45 In the Board's report of June 8 it recommended  4 6 that no regular government was needed for  47 "Newfoundland, where a temporary Fishery is the only 27466  Submissions by Mr. Goldie  1 object".  2 The prohibition against purchase of Indian lands  3 in Y is restricted to "those parts of our Colonies  4 where, we have thought proper to allow Settlement;".  5 On October 7, 1763 Newfoundland was not a colony where  6 His Majesty had thought it proper to allow settlement,  7 and so was not subject to paragraph Y.  8 And then I deal with Rupert's Land.  It was a  9 British colony with respect to which settlement could  10 be authorized by the Company, but settlement had not  11 been permitted by 1763.  For decades prior to the  12 Proclamation the Company had discouraged settlements  13 as incompatible with the fur trade.  No change in the  14 wilderness character of Rupert's Land was contemplated  15 by the framers of the Proclamation.  If your lordship  16 would delete the first reference 1156 footnote 18 --  17 THE COURT:  Well, isn't Rupert's Land a different situation  18 because it was specifically excluded?  So it couldn't  19 follow the flag to Rupert's Land, could it?  20 MR. GOLDIE:  That's correct, but the proposition that the  21 plaintiffs make is that regardless of the wording of  22 the Act -- of the Proclamation, it was designed to  23 match the commerce and they say that the commerce took  24 place in Rupert's Land in the fur trade.  Mr. Justice  25 Mahoney notes in Bakers Lake, this is an insert in  26 my -- in what I have here, my lord, that the Hudson's  27 Bay Company was not required to provide for settlement  28 until 1817, that's page 565 Baker Lake.  29 Then paragraph 238.  Paragraph Y includes the  30 provision declaring trade with the Indians to be free  31 to all subjects whatever.  The trade provisions could  32 not have been intended to apply to Rupert's Land  33 because it would have amounted to a serious breach of  34 the 1670 Charter which granted the governor and  35 company of adventurers trading into Hudson's Bay "the  36 sole Trade and Commerce of their territory".  And  37 already as I have noted, Mr. Justice Mahoney concluded  38 that Rupert's Land was a settled colony to which the  39 Royal Proclamation could not apply.  And then the  40 Royal Proclamation itself was never sent to the  41 Hudson's Bay Company.  That appears from the -- it's  42 the negative of the proposition that a search was made  43 for the Royal Proclamation and it could not be ever  44 found to have been sent to the Hudson's Bay Company.  45 In summary the Indian provisions of the Royal  46 Proclamation did not apply to the British colonies of  47 Newfoundland and Rupert's Land, and except set for the 27467  Submissions by Mr. Goldie  1 trade provisions, probably did not apply to Nova  2 Scotia.  It follows, in our submission, that the  3 Indian provisions cannot be construed as establishing  4 principles applicable to all then existing and after  5 acquired British colonies in North America.  6 THE COURT:  Should we adjourn?  7 MR. GOLDIE:  All right, my lord.  Is it 9:30 tomorrow morning?  8 THE COURT:  9:30 in the morning, please, to 12:30.  All right,  9 thank you.  10 THE REGISTRAR:  Order in court.  Court stands adjourned until  11 9:30 a.m. tomorrow morning.  12  13 (PROCEEDINGS ADJOURNED AT 4:30 p.m. TO MAY 26, 1990)  14  15 I hereby certify the foregoing to  16 be a true and accurate transcript  17 of the proceedings transcribed to  18 the best of my skill and ability.  19  20  21  22  23  24 Tannis DeFoe,  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


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