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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-04-06] British Columbia. Supreme Court Apr 6, 1990

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 23?  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  MR.  MR.  MR.  MR.  MR.  Smithers, B. C.  April 6, 1990.  REGISTRAR:  In the Supreme Court of British Columbia, April  6, 1990.  Delgamuukw versus her Majesty the Queen at  bar, my lord.  COURT:  Mr. Rush?  RUSH:  My lord, before we get underway, the disc that I  promised you is here and I should point out that it  contains the citations that counsel, Mr. Goldie, asked  of Mr. Grant to make reference to in respect of the  argument that's been submitted to you.  So that the  citations are added and that's the only difference  between the hard copy and that.  GOLDIE:  Since I don't have that disc, perhaps my friend  could provide me with the citations in question.  RUSH:  I will provide you with the disc, if you like.  GOLDIE:  Yes, I will run my fingernail along it.  RUSH:  We could photocopy it for you.  GOLDIE:  My lord, my friend having referred to the disc, I  had stated in my letter of delivery that we would be  providing your lordship with a disc of our summary.  We have run into difficulty, I think it's basically  the same sort of thing that Mr. Rush has referred to,  one of the sections of the summary was not done on the  Word Perfect and in transcribing it it's become  corrupt and it's now being corrected.  THE COURT:  All right.  Thank you. Thank you, Mr. Rush.  I am  not sure where all this is going to lead us but I am  sure it will make life easier at some point along the  way.  Physically handling the volumes creates  resistance to bother looking for something which  should be looked for sometimes.  MR. RUSH:  I hope it's of some help to you.  My lord, I had left off at page 62 and I was about  to go to the heading on that page, two-thirds of the  way down, dealing with Part IV of the Royal  Proclamation is constitutional in nature, having to do  principally with the exercise of the governor's  powers.  Now, our submission here, my lord, is that the  Indian land provisions of the Royal Proclamation  purport to limit the powers of all governors in North  America to acquires lands in possession of the Indians  except in accordance with the procedure therein  enunciated.  In this respect, these provisions form  part of the constitution enacted for the newly-ceded 23887  Submissions by Mr. Rush  1 territories dictating the conditions upon which the  2 governors were to exercise their authority over  3 Indians lands.  The authority of the Queen in the  4 colonies is represented by a governor.  He is  5 appointed by Her Majesty's commission which confers  6 upon him his powers and with his instructions defines  7 generally his duties.  The prerogative was the King's  8 to bestow and he could grant it or withhold in such  9 degree as he saw fit.  10 In the middle of 63, it has been held that a  11 governor of a colony has not, by virtue of his  12 appointment, the whole sovereignty of the territory  13 delegated to him.  He is not an viceroy, his authority  14 being limited to that conferred upon him by the Crown  15 or by the acts of parliament or other laws.  His  16 authority is derived from his commission and limited  17 to the powers thereby expressly or impliedly entrusted  18 to him.  19 About the case of Musgrave v. Pulido, Mr.  20 Berridale Keith had this to say:  21  22 "There could be no doubt about of the doctrine  23 of the privy council; a governor has no special  24 privilege like that of the Crown; he must show  25 in any court that he has authority by law to do  26 an act, and what is more important for our  27 purpose, he must show not merely that the Crown  28 might do the act, but that he personally had  29 authority to do the act.  And a governor was  30 directed to perform his power in accordance  31 with Royal instructions regarding such."  32  33  34 Now, the Royal instructions to a governor might be  35 merely administrative, but they were frequently  36 legislative.  Clearly instructions may be held to be  37 discretionary and not mandatory in the same way as  38 other legislation, but Mr. Roberts-Wray suggests that  39 such as part of and not an exception to the general  40 principle that the Royal instructions are law.  As  41 canvassed above, where such instructions were used to  42 convey the Royal pleasure under the Prerogative for  43 the setting up of a local legislature, they clearly  44 had legal effect.  It was also common for the  45 Sovereign to convey constitution details to supplement  46 the major constituent instrument, and I note Letters  47 Patent, Act of Parliament or Order-in-Council, through 23?  Submissions by Mr. Rush  1 Royal instructions.  It was in fact common for a  2 governor to be directed in the constituent instrument  3 to perform specified functions and generally powers  4 vested in him in accordance with Her Majesty's  5 instructions, or His Majesty's instructions.  6 And in -- just to add to that, my lord, that is  7 what we say was done in respect of Quebec as shown in  8 Parts I and II of the Proclamation.  9 Now, about the force of such instructions, Mr.  10 Roberts-Wray says:  "It would be absurd to suggest  11 that the constitutional details set out in the  12 instructions did not have full legislative  13 operation..."  And Mr. Roberts-Wray cites Cameron vs.  14 Kyte to the effect that if a governor had by virtue of  15 his appointment the whole sovereignty of the colony  16 delegated to him as viceroy, his acts would be valid  17 even though not in conformity with his instructions.  18 This, as Roberts-Wray argues, implicitly suggests  19 where a governor is not by his commission made  20 viceroy, it is not open to him to disregard Royal  21 instructions regarding the exercise of his power.  22 The instruments most commonly used to convey the  23 constitutional orders of the Crown were commissions  24 and instructions.  But in the early dates of the  25 British Empire, other instruments, such as Orders-in-  26 Council and proclamations seem to have been used more  27 or less indiscriminately along with the former  28 instruments for such purposes.  29 The means chosen to communicate to the governors of  30 British North America the Royal pleasure in relation  31 to the purchase by the Crown of Indian lands was a  32 Royal Proclamation, an official public announcement  33 under the great seal.  34 At the bottom of 65, my lord, the Indian land  35 provisions therein "enacted" did not affect any major  36 constitutional amendment to any of the colonial  37 constitutions but rather entrenched, in a written  38 document, existing unwritten constitutional  39 restraints.  From the beginning, British colonial  40 governors in North America had been given clear  41 instructions to respect native land rights and to  42 acquire territory only through cession and purchase.  43 The Indian provisions of the Proclamation confirmed  44 the long-held British colonial policy and practice of  45 respect for Indian possession and declared the  46 accepted common-law position regarding Indian land  47 rights. 23?  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT:  MR. RUSH:  THE COURT:  MR. RUSH:  The Indian provisions of the Royal Proclamation of  1763 merely instructed, or we would suggest, reminded  governors to recognize certain procedures for Crown  purchases of Indian title.  That this was within the Crown's power gains  support that the fact that a draft of the  Proclamation, prepared by the Lords of Trade and  passed to Attorney-General Charles Yorke for legal  comment, was passed with these words: "it contains  nothing contrary to law."  And that is Exhibit 1026-30  is where that may be found.  It is our position, my lord, that the Indian land  provisions, as argued above, are constitutional in  nature, having to do principally with limitations on  the Governor's powers to purchase Indian lands and  were thus a valid exercise of a major prerogative  legislative power.  The provisions serve to bind the  governors in all British colonies and plantations in  America, at any time during the Proclamation's life.  Once the colonial constitution had actually been  set up, the prerogative instruments responsible took  on the force of British statutes.  The prerogative instruments establishing  constitutions had the force of Imperial Statutes and  provided a legal basis to the institutions set up  under them.  Now we say, my lord, at the top of 67, this  exercise of the Crown's constituent power must be  distinguished from the Crown's power to make ordinary  laws.  Where the Crown makes a grant of a local  legislature, and without reserving to itself a power,  the Crown loses its ordinary legislative power.  However, the Crown, upon the grant of the legislature,  is not emptied of all constituent power and  specifically of the power to make amendments to the  constitution not amounting to a revocation of the  grant.  : I don't suppose the constitutional or operation of  the Proclamation was ever challenged in the colonies  prior to their independence on the ground --  No.  -- on the ground that there had been a grant of a  legislature?  No, it had not.  Thank you.  Now, my lord, the second way in which the Royal  Proclamation is a major prerogative legislation, is in 23890  Submissions by Mr. Rush  1 relation to British lands and territories.  2 Now in the alternative or in addition to, the  3 Royal Proclamation being major prerogative legislative  4 by reference to the Crown's constituent power, the  5 Proclamation is major preogative legislation referable  6 to the Crown's power in relation to lands in dependent  7 British territories.  8 As mentioned above, the King enjoys certain major  9 perogatives in relation to all British lands and  10 territories.  Such perogatives applied proprio vigore,  11 or by its own force, as an incident of British  12 sovereignty.  The prerogative instruments by which the  13 sovereign's will was expressed as to matters within  14 its peculiar authority, applied of their own force in  15 all territories to which they related, independently  16 of whether or not the basic law of such territory was  17 English law.  18 The Royal Proclamation recognizes the pre-existing  19 land rights of the Indian nations and establishes a  20 procedure whereby Indian lands are to be acquired by  21 the Crown with the consent of the Indians in full  22 assembly.  The exercise of the Crown's prerogative in  23 this respect is consistent with the Crown's power in  24 relation to lands in dependent British territories.  25 In an uninhabited country the Crown obtains full  26 title to the soil in unrestricted powers of disposal.  27 Incoming settlers can make good against the Crown only  28 such rights to the land as derived from the Crown  29 itself.  30 However, my lord, where the territory is owned by  31 aboriginal peoples, the Crown gains an underlying  32 title to those lands subject to the pre-existing  33 rights of the Indian nations.  34 The necessity and significance of Imperial  35 supervision in regard to the fundamental issue of land  36 ownership and the accomodation of the pre-existing  37 rights of aboriginal peoples with the land  38 requirements of settlers through the public process of  39 treaty making, has been demonstrated in our analysis  40 of the period 1751 and 1763.  Indeed, my lord, that  41 should be stated in much earlier terms as well, as Mr.  42 Jackson's survey of that earlier history indicates.  43 By the Royal Proclamation of 1763, the King  44 enacted measures of a legislative character on matters  45 peculiarly within his control.  46 The Crown's right to prescribe the policy to be  47 adopted by all governors in North America in relation 23891  Submissions by Mr. Rush  1 to the procedure to be adopted in the colony for Crown  2 purchase of lands in Indian possession and to restrict  3 the power of governors to grant such lands, was a  4 major prerogative of the King.  Governors or local  5 legislatures were competent to enact laws relating to  6 land in the colony.  However, the delegation of a  7 prerogative power does not mean it has been assigned.  8 The Crown may prescribe limits to the exercise of such  9 a power.  And refer to R. vs. Clarke.  10  11  12 "A governor of a colony is not invested with all  13 the prerogative of the Crown.  The power of  14 granting land is part of the prerogative of the  15 Crown.  The Governor's power is limited by his  16 commission, and the Royal instructions."  17  18 Now, the instructions could be merely private  19 directions, legislative or administrative, addressed  20 to a particular governor, or could be directed to all  21 colonial governors on matters of important Imperial  22 concern.  23 Now, we ask your lordship to note this paragraph:  24 Colonial assemblies were supreme in their sphere of  25 activity and could modify by local legislation the  26 prerogative insofar as it concerned local authority.  27 However, they could not enact, we say, legislation  28 inconsistent with Imperial Statutes extending to the  29 colony or with major prerogative orders so extending.  30 Any doubts in that regard were removed by Section 2 of  31 the Colonial Laws Validity Act in 1865, a matter we  32 will come to in due course when we are dealing with  33 that statute.  34 Where an assembly is summoned in a colony,  35 whatever powers the Crown enjoyed to enact ordinary  36 legislation for the colony -- sorry, for the colony  37 ceases, Crown rights in regard to land are otherwise  38 unaffected by the calling of the assembly.  This  39 distinction between the Crown's legislative powers in  40 a colony was recognized in Campbell vs. Hall.  In that  41 case, as we pointed out, Lord Mansfield held that by  42 promising an assembly to Grenada in the Royal  43 Proclamation of 1763, the King lost the powers of  44 ordinary legislation.  Nevertheless, Lord Mansfield  45 treated a later Proclamation by the King as valid,  46 that is the one of March, 1764, where it set forth  47 terms for the disposal of land in the colony.  It is 23892  Submissions by Mr. Rush  1 submitted that the Indian land provisions embodied in  2 the Royal Proclamation are a valid exercise of the  3 Crown's prerogative with respect to land in a colony.  4 Now, I direct your lordship's attention to Johnson  5 and M'Intosh and, my lord, I point out to your  6 lordship that case is found in our authorities at tab  7 22 of volume 11.  Now, in Johnson and M'Intosh the  8 court was there dealing with the question of whether  9 the Crown had the perogative power to make provision  10 for the Indian lands in a colony where it lacked  11 legislative authority.  Chief Justice Marshall stated  12 that in British constitutional law, all vacant lands  13 were vested in the Crown, and the exclusive power to  14 grant them was admitted to reside there as a branch of  15 the Royal Perogative.  That is to be found at 572-2.  16 Not only was this true in respect of vacant land  17 but all lands occupied by the Indians, the ultimate  18 title to which, subject to the Indians' right of  19 occupancy, was held by the King along with the power  20 to grant that title.  And the reference there is at  21 page 574.  The conclusion of the Chief Justice in that  22 case was that the lands covered by the Royal  23 Proclamation of 1763, were lands which the King had  24 the right to grant or to reserve for the Indians.  And  25 that's at 574 as well.  26 The validity of the Royal Proclamation, my lord,  27 was discussed by Lord Denning in the Queen and  28 Secretary of State.  And here he said in his judgment:  29  30 "The colonies formed one realm with the United  31 Kingdom, the whole being under the sovereignty  32 of the Crown.  The Crown had full powers to  33 establish such executive, legislative and  34 judicial arrangements as it thought fit.  In  35 exercising these powers, it was the obligation  36 of the Crown (through its representatives on  37 the spot) to take steps to ensure that the  38 original inhabitants of the country were  39 accorded their rights and privileges according  4 0 to the custom could coming down the centuries,  41 except insofar as these conflicted with the  42 peace and good order of the country or the  43 proper settlement of it.  This obligation is  44 evidenced most strikingly in the case of Canada  45 by the Royal Proclamation of 1763.  46 The Royal Proclamation of 1763 had great impact  47 throughout Canada.  It was regarded as of high 23893  Submissions by Mr. Rush  1 constitutional importance, it was ranked by the  2 Indian peoples as their Bill of Rights..."  3  4 He went on to say:  5  6 "To my mind the Royal Proclamation of 1763 was  7 equivalent to an entrenched provision in the  8 constitution of the colonies in North America.  9 It was binding on the Crown 'so long as the sun  10 rises and the river flows'.  I find myself in  11 agreement with what was said a few years ago in  12 the Supreme Court of Canada in Calder, in a  13 judgment in which Mr. Justice Laskin"  14  15 As he then was,  16  17 "concurred with with Mr. Justice hall and said:"  18  19 And I have made reference to this passage earlier,  20 my lord, but I ask your lorship to take note again of  21 the language at the end of the passage, "the  22 Proclamation must be regarded as a fundamental  23 document upon which any just determination of original  24 rights rests."  25 He went on to say:  26  27 "The 1763 Proclamation governed the position of  28 the Indian peoples for the next 100 years at  29 least."  30  31 This is Lord Denning speaking again.  32  33 "It still governs their position throughout  34 Canada except in those cases where it has been  35 supplemented or superseded by a treaty with the  36 Indians."  37  38 When dealing with the Constitution Act of 1867,  39 Lord Denning noted that except for section 91(24), the  40 1867 act was silent on Indian affairs and he  41 continued:  42  43 "But I have no doubt that all concerned regarded  44 the Royal Proclamation of 1763 as still of  45 binding force.  It was an unwritten provision  46 which went without saying.  It was binding on  47 the legislatures of the Dominion and the 23894  Submissions by Mr. Rush  1 provinces just as if there had been included in  2 the statute a sentence:  'The aboriginal  3 peoples of Canada shall continue to have all  4 their rights and freedoms as recognized by the  5 Royal Proclamation of 1763.'"  6  7  8 And I need only to draw your attention again, my  9 lord, to the recognition of the Royal Proclamation in  10 section 25 of the Constitution Act of 1982.  11 Now, my lord I would like to go to an insert which  12 appears just before the last paragraph on 71.  And it  13 goes to 71 a, and this is our third point about the  14 major prerogative legislative character of the  15 Proclamation, that is to say, in relation to public  16 law.  And it's our submission there that certain  17 prerogative instruments of the Crown form part of the  18 British public constitutional immediately in force in  19 the colonies.  20 The Royal Proclamation of 1763 is one such  21 instrument because its character and function is  22 manifestly the enforcement of public policy of the  23 Kingdom and the removal of public mischief which  24 touched the state.  25 One scholar has noted that the conquest of Canada  26 in 1763 had the effect of substituting the public laws  27 of England for that of France.  I note Walton Dean  28 there.  29 My lord, I direct you to Mr. Justice Kellock in  30 the decision of Chaput and Romain, where he said:  31  32 "Questions which concern the relation of the  33 subject to the administration of justice in its  34 broadest sense are subject to the control of  35 the courts and are therefore governed by the  36 law of England and not by that of France."  37  38  39 Mr. Justice Kellock relied on a statement of Mr.  40 Justice Ramsey in Corporation du Compte d'Arthbaska v.  41 Patoi in which he said:  42  43 "I have quoted English law on this subject, for  44 it, I think determines the point.  Municipal  45 institutions such as those we have are derived  46 from the English law and our courts have the  47 general perogatives of English courts.  These 23895  Submissions by Mr. Rush  1 last are derived from the authority of the  2 sovereign and as the administration of justice  3 is one of the great rights of the Crown, it is  4 governed by the public law of the Empire."  5  6 While the above cited cases are from the Province  7 of Quebec, the same principle has been expressly  8 recognized in South Africa and in several decisions of  9 the Privy Council, and we cite Cameron and Kyte.  I  10 will provide you with a copy of that in due course.  11 In Abbot vs. Fraser, the question arose as to  12 whether a French edict in force in Quebec remained in  13 force after the cession of the territory to Great  14 Britain in 1763.  The Privy Council stated:  15  16 "It is open to considerable doubt whether the  17 first nine articles of the edict, which all  18 relate to foundation of corporations, retained  19 the force of law after this cession; first  20 because the forms and regulations they  21 prescribed then became out of place; and  22 secondly, for the substantial reason that the  23 articles, which had for their object to put  24 fetters on the King's own power, could not and  25 may fairly be contended, be of force to control  26 the sovereign will of the English Crown, whose  27 prerogative it would be, after the cession, to  28 establish corporations..."  29  30 In effect, my lord, the Privy Council upheld on  31 this point the judgment from the Court of Queen's  32 Bench for Lower Canada and it is interesting to note  33 the words of the Queen's Bench on this question.  34 After finding that the declaration of 1793 "manifestly  35 falls within the class of public administrative laws,  36 and not of the civil or municipal laws of the  37 colonies" and that, and I quote "its administrative  38 character and functions are manifestly the enforcement  39 of the public policy of the Kingdom and the removal of  40 the alleged public mischief which touched the state  41 only."  42 The court goes on to state that "as such public  43 administrative law it belonged to the state  44 exclusively and necessarily followed its fortunes..."  45 After citing examples of its administrative nature the  46 court finds "the Act of 1743 to be a public  47 administrative act which existed within the Dominion 23896  Submissions by Mr. Rush  1 only to which it belonged a could not contract or  2 govern the perogative rights or powers of the new  3 sovereign of the colony, and did not require to be  4 abrogated or repealed by express legislative  5 authority."  The latter because on the cession of the  6 colony to Great Britain in 1763 it was no longer  7 subject to the administrative public law of France but  8 became subject to the administrative public law of  9 great Britain.  10 Now, the Royal Proclamation of 1763 was proclaimed  11 when the Imperial Crown was attempting to establish a  12 foothold in North America.  The policy which was  13 expressed in the Proclamation was a general  14 recognition of Indian land rights and the requirement  15 that such rights would be acquired by consent.  16 And I would ask you to make a note, my lord, to  17 add to this what has been referred to by Mr. Jackson,  18 and briefly touched on by myself, that the policy  19 nature of the Proclamation is evident in the Hints  20 document, by Mr. Ellis, and indeed, by Mr. Pownall's  21 sketch which is Exhibit 1026-23, where the policy  22 questions of the Crown and the drafters were there  23 considered.  24 The policy, and I am continuing at the bottom of  25 71, my lord, 71 c, the policy was one of respect for  26 the Indian nations who would be both trading partners  27 and peoples with whom the British would ultimately  28 share a future together on lands which were the  29 homeland of the Indian nations.  The Proclamation  30 prohibited the frauds and abuses which had arisen in  31 the past arising out of sharp dealings with the Indian  32 people.  The British Crown, through the Proclamation,  33 intended to and did bind the colonies into a policy of  34 respect and protection for the Indian nations which  35 was intended to endure over time.  36 Now, my lord, I would ask you to go back to the  37 bottom of page 71, before that in certain, and this is  38 our summary of the preceding argument.  39 We say, in summary the recognition and protection  40 of Indian land rights embodied in the Royal  41 Proclamation is a valid exercise of a major Crown  42 prerogative legislation, on the grounds that -- and I  43 ask you to move to page 72 -- firstly, they are  44 constitutional in nature, having to do principally  45 with limitations on the powers of governors to acquire  46 unceded Indian lands; secondly, as legislation  47 governing the procedure to be adopted for Crown 23897  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  alienation of Indian lands, they fall within the  King's peculiar authority.  And I just ask you to add,  my lord, after the second subparagraph on page 72,  that these provisions formed part of the public law of  the colonies.  :  I am sorry, part of the public law of --  Of the colonies.  And in conclusion, my lord, on this point, the  provisions in Part IV express a universal policy in  relation to the procedure to govern all Crown  purchases of lands in Indian possession and restrict  the powers of all governors to grant such lands.  As  such, the Indian land provisions operate to bind the  governors of all colonies in British North America at  whatever period they may be acquired, and  independently of posterior legislation, expressly  extending to them.  These provisions of the  Proclamation applied proprio vigore to the colony of  British Columbia.  Now, my lord, I am going to move to a new point and  that is the question of the Indians affected by the  Proclamation.  And it is our contention here that the category of  Indians described in the preamble to Part IV  encompasses all Indian peoples occupying or owning  territories claimed by the British Crown in North  America in October, 1763, irrespective of whether  these were specifically known to the Crown, allied  with it or factually connected with it.  This  interpretation we say flows logically from the  provisions of Part IV incorporating the opening  preamble and most important, it is consistent with the  extent of the mischief perceived by the Crown to be in  need of correction in North America.  Again, I cite Mr. Justice Hall in Regina and White  and Bob at page 639 at the top of our argument, page  73:  'The Proclamation, while referring principally  to Indians who were at the time known to the  British, brought within its purview all Indians  on lands over which Great Britain claimed under  dominion, that land being the unlimited west --  that territory which was then and for over a  century after the Treaty known generally as  Indian territory.  This land was known to 2389?  Submissions by Mr. Rush  1 exist, although a great part of it had not been  2 explored."  3  4  5 Now, my lord, I again refer you back to the text of  6 the Proclamation itself, the preamble to Part IV,  7 refers to "the several nations or tribes of Indians  8 with whom we are connected and who live under our  9 protection."  And you will see that in the fourth line  10 of the preamble.  11 The description clearly contemplates Indians living  12 in British territories.  The description can be read  13 disjunctively, it therefore includes either Indians  14 "with whom We are connected", and/or Indians "who live  15 under Our Protection."  The language of the preamble  16 strongly suggests an intention to protect all Indians  17 who in fact possess, and I quote, "such parts of our  18 Dominions and territories as, not having been ceded to  19 or purchased by Us are reserved to them..."  and that  20 is in the, if you will, the remaining four lines of  21 the preamble.  22 Now, we say, my lord, that it is axiomatic that a  23 rule of construction, that the words of a statute in  24 context of the statute should be regarded as a whole.  25 And I cite the rule in Maxwell at the top of 74 where  26 he says, in part:  27  28 " is an elementary rule that construction  29 is to be made of all the parts together, and  30 not of one part only by itself."  31  32 Thus we say, my lord, the court must look to the  33 words used in the other paragraphs of Part IV to  34 render the correct interpretation of the language of  35 the Proclamation as a whole.  And so when we look to  36 paragraph two, it reserves under Crown sovereignty,  37 "for the use of the said Indians" all the lands not  38 comprised within Quebec.  39 And I would ask you to note that it refers to all  40 the lands not comprised within Quebec, the two  41 Floridas and Rupert's Land lying eastward of the  42 Atlantic watershed.  43 THE COURT:  Westward.  44 MR. RUSH:  Sorry, westward of the Atlantic watershed.  45 Most of this territory was occupied by Indians  46 previously connected with the French and some of whom  47 had earlier, in 1763, risen in arms against the 23899  Submissions by Mr. Rush  1 British as, for example, the Ottawa and the Chippewa.  2 If paragraph 2 were to be interpreted as referring  3 only to Indians connected with the Crown, then either  4 the entire territory described there is set side for  5 the exclusive use of "connected" Indians, thus  6 dispossessing the unconnected groups actually living  7 there; or, the text refers only to lands actually  8 occupied by connected Indians within the area  9 designated, and not to those held by unconnected  10 people.  The first result is improbable.  The second  11 leads to difficulties in the application of paragraph  12 5, which provides for the arrest of accused persons  13 taking refuge "in the said territory", that is "the  14 territories reserved as aforesaid for the use of the  15 said Indians."  If these territories consisted only of  16 lands inhabited by connected Indians, then a criminal  17 fleeing to the vast areas occupied by unconnected  18 Indian peoples, could not be touched even though still  19 on British soil.  20 Now, my lord, in construing this statute the court  21 should avoid an interpretation of the words which  22 would lead to some absurdity or repugnance or  23 inconsistency with the rest of the instrument, and I  24 their cite Craies.  In construing Part IV of the Royal  25 Proclamation as a whole, the paragraphs should be read  26 together in their context so as to allow for  27 consistency and to avoid absurdities or anomolies.  28 Now, other anomolies would flow if a strict  29 interpretation were to be taken of the language in the  30 preamble.  Under paragraph 4, while private purchases  31 of land from connected groups would be prohibited,  32 unconnected Indians would be left open to the "great  33 frauds and abuses" mentioned there, thus contradicting  34 the very intent of the Proclamation itself, and in  35 fact permitting "mischief" designed to be cured.  36 Also, paragraph 4, declaring the Indian trade open  37 would not apply to many Indian groups within the ceded  38 territories in whose hands the bulk of the fur trade  39 lay.  The most likely interpretation we say then, is  40 the one that sees Part IV as referring to all Indian  41 peoples within territories claimed by the British  42 Crown.  43 We say that this view was supported by the Privy  44 Council in St. Catherine's Milling where Lord Watson,  45 at page a 53, I am paraphrasing the preamble, said:  46  47 "The several Nations and Tribes who lived under 23900  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  British protection."  :  Then your case for the application of the  Proclamation to British Columbia would depend upon it  having perspective application, because there was no  protection offered to the Pacific Coast at that time?  Yes, that's so, my lord.  :  Thank you.  Later Lord Watson described interest in lands held by  the Indians "to the general provisions made by the  Royal Proclamation in favour of all Indian tribes then  living under the sovereignty and protection of the  British Crown."  Now, I will just ask you to go to page 77 at the  top now, my lord, the Judicial Committee in re  Labrador Boundary, offered a more restrictive view of  the language "with whom we are connected" in Part IV  of the preamble.  And we say this view is incorrect.  Viscount Cave stated in this case, that two Indian  nations, namely the Nascopie and the Mantagnais, who  inhibited the coast of Labrador, did not count among  the number of Indians described in the preamble to the  Proclamation.  And two main reasons or offered.  Firstly:  "It appears from the report of the Lords of  Trade dated June 8, 1763, on which the  Proclamation was based, that the Indians so  described consisted of those tribes of the Six  Nations who were settled around the Great Lakes  or beyond the sources of the rivers which fell  into the River St. Lawrence from the north."  Now, we say the board misconceived the location of  the Six Nations, that is, the Iroquois Indians.  Their  main area of settlement in 1763 lay south of Lake  Ontario and Erie and certainly not beyond the sources  of rivers falling into the St. Lawrence from the  north, as suggested in their judgment.  But, my lord,  I ask you to take into account Dr. Slattery's comment:  "The proposition..."  That's stated here in the first point:  "...that general words employed in a public 23901  Submissions by Mr. Rush  1 legal instrument can be restricted in scope by  2 confidential ministerial correspondence  3 preceding it, cannot be sustained under  4 ordinary rules of statutory construction."  5  6 Now, I am going to be returning to this point, my  7 lord, because here the Judicial Committee relied upon  8 the June 8, 1763 report to the Board of Trades as a  9 way of interpreting the meaning of the language of the  10 Proclamation, and there are serious hazards involved  11 in making that direct relationship.  12 And I will be referring to that, in my submission,  13 for their to replace such reliance on that document  14 was indeed flawed.  15 The report of the Lords of Trade of June 8, cannot  16 support the intention which the board sought to  17 attribute to the preamble in the Proclamation.  In  18 addition, that report did not in fact refer to Six  19 Nations, it referred generally to the Indian tribes.  20 While the Six Nations are mentioned earlier in the  21 report, they are referred to in a description of the  22 advantages in respect of the fur trade.  23 Finally, there is nothing in the language of the  24 Proclamation as a whole, nor in any of the surrounding  25 documentary record, to support the narrow conclusion  26 that the six -- that the several nations or tribes of  27 Indians referred only to the Six Nations Indians.  28 Now the second reason offered by the board is  29 this:  30  31 "Further, the Nascapies and Montagnais, so far  32 as they had taken any part in the Anglo-French  33 conflict, had sided with France, and they were  34 not connected with or under the protection of  35 the King before the cession of the French  36 territory to him. "  37  38 Now, there argument suggests that the preamble  39 covers only Indians who were connected with or  40 protected by the Crown, prior to the cession of 1763,  41 and excludes Indians living in the ceded territories  42 who were formerly allied with or protected by France.  43 Dr. Slattery's answer to this argument is apposite:  44  45 "This remarkable proposition ignores the fact  46 that the Proclamation was issued eight months  47 after the Treaty of Paris was signed and 23902  Submissions by Mr. Rush  1 explicitly expresses itself to the situation  2 arising from that instrument.  Its reference to  3 Indians under the protection of the Crown,  4 cannot be construed in the absence of specific  5 words to refer only to those fulfilling that  6 criterion prior to 10 February, 1763."  7  8  9 Why would the British Crown exclude the  10 Proclamation's application to Indians living in and  11 trading from land which the British claimed were ceded  12 to it as a result of the Treaty of Paris in 1763?  13 Now, I would add to this, my lord that since 1927,  14 the decision in re Labrador Boundary, there has been a  15 number of cases which have overtaken the findings of  16 this court, and I ask you to make note of White and  17 Bob and Calder.  And, in my submission, it is likely  18 that this case would be decided differently if it were  19 considered today.  20 In conclusion, my lord, the findings of the Privy  21 Council in re Labrador Boundary are not to be taken as  22 authoritative on the meaning of the language in the  23 preamble.  The board's reasoning is, with respect,  24 wholly without justification in light of the language  25 the object and the intent of the Proclamation.  26 An analysis of the historical documents leading to  27 the final draft of the Royal Proclamation, supports  28 the plaintiffs' interpretation of the language about  29 the Indians who were encompassed within the  30 Proclamation's purview.  These documents furnish  31 useful insights into the historical situation which  32 the Proclamation addressed and the mischief it was  33 designed to remedy.  They help to guide the court in  34 determining the true reason for the remedy and thus  35 the intention of the drafters.  36 Now, my lord, a moment ago I made reference to  37 the -- as a cautionary note, if you will, to be placed  38 on the documents, the official documentary record that  39 immediately precede the issuance of the Proclamation  40 in 1763, and I would like to comment briefly here.  41 There are limitations on the use as extrinsic aids  42 of interpretation placed on the official documentation  43 preceding the issue of the Royal Proclamation.  This  44 documentation has been loosely referred to as the  45 "traveaux preparatoires" translated as the collective  46 discussions and studies for the preparation of a text  47 or resolution.  Not all of the official documentation 23903  Submissions by Mr. Rush  1 preceding the issuance of the Proclamation fall into  2 this description, nor is the description sufficiently  3 broad to encompass the history contained in the  4 official record stretching back over the period  5 covering the genesis of the Proclamation terms.  The  6 official documentation leading to the Proclamation, we  7 say can be used in two ways:  To refer to the  8 historical situation giving rise to the Proclamation;  9 and secondly, as we have argued, to ascertain the  10 mischief or unsatisfactory state of affairs which the  11 Proclamation was designed to remedy.  12 Now, my lord, documents leading up to an enactment  13 are not themselves admissible for the purposes of  14 determining the intentions of the makers of the  15 enactment.  The historical record cannot determine the  16 meaning of language in an enactment.  The intentions  17 of the makers of the enactment are to be ascertained  18 from the language of the enactment itself.  The rule  19 against the use of prior documents was formulated to  20 deal with official public records, giving rise to acts  21 of parliament, but I say surely incorporate official  22 documentation preceding an executive act such as the  23 Royal Proclamation.  24 Now, my lord, I have referred to Maxwell again in  25 dealing with the way in which these extrinsic aids may  26 be invoked to assist the interpreter of the statutes.  27 And Maxwell says, in part:  28  29 "The interpreter may call to his aid all those  30 external or historical facts which are  31 necessary for comprehension of the subject  32 matter and may also consider whether the  33 statute was intended to alter the law or leave  34 it exactly where it stood before.  35 But the modern rule is clear:  the  36 parliamentary history of legislation is not a  37 permissible aid in construing a statute."  38  39  40 Now, my lord, I just ask you to look at the next  41 passage of Maxwell's, cited within the next paragraph.  42 The reports of Commissions or Committees preceding  43 the passing of legislation and other documents  44 including draft official documents preceding the  45 statute, unless that document is expressly referred to  46 the in the statute, cannot be looked at for the  47 purpose of construction. 23904  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Now, Maxwell acknowledges that there are other  cases dealing with this issue and he said:  "The majority of the cases having taken the  middle course indicated in the Assam Case:  Reports have been submitted not to show the  intention of the legislature but to show what  was the mischief intended to remedied in the  same way as other evidence of the historical  setting of legislation is received."  Now, if preceding official documents and drafts  are to be referred to, they cannot be used for the  purpose of determining the intention of the framers of  the statute, and hence the meaning of the language  contained within it.  THE COURT:  Didn't the Supreme Court of Canada, particularly  Chief Justice Laskin, deal with this in the Anti-  Inflation judgment, where he talked about the factual  underpinning?  Seems to me that he did.  MR. RUSH:  My lord, I don't — I wouldn't say that that analysis  differs from what I am saying.  I simply say that you  can't look at the official documentation and extract  from what's said there, and apply it as being the  intention.  But I do say that the documentation is  relevant as to the factual, in the language  THE COURT: Factual underpinnings.  MR. RUSH:  -- underpinnings.  And I think what Maxwell says the  historical setting of the legislation.  I think we are  saying the same thing.  And I make the point, my lord, on 82, the limits  to usefulness of preceding documentation are self  evident and it cannot be assumed that an instrument  such as the Royal Proclamation reflects in every  particular, policies, in every particular, policies,  agreed on at any earlier stage.  Changes are always  possible and did occur.  The process of drafting the  transformation of general ideas into precise legal  language reveals the need to elaborate or modify  concepts, to use Dr. Slattery's words, to co-ordinate  others or to fill gaps in the original plan.  Now, my lord, I am not going to go into the next  paragraph, it deals with the reasons why your lordship  must be cautious about applying language which appears  in earlier official documentation.  And I think that  they would be self evident and would flow naturally 23905  Submissions by Mr. Rush  1 from our argument here.  2 Now, with these caveats in mind, my lord, and I am  3 here on 83, beginning of the full paragraph in the  4 middle of the page, with these caveats in mind I would  5 like to examine some of the official documents as they  6 deal with the Indians included in the Proclamation.  7 And your lordship may recall that Mr. Jackson has  8 reviewed some of this and I am simply going to touch  9 on it in respect of certain of the provisions of the  10 language of the Proclamation, as it applies to the  11 Indians that were intended to be -- were incorporated  12 in the Proclamation's language.  13 Firstly, the letter of Egremont to Amherst of  14 January 27, 1763, Egremont states that the King has it  15 much at heart to conciliate "the affection of the  16 Indian Nations by over act of strict justice."  And  17 here referring to the Indian nations.  18 On the May 5th, 1763, Egremont wrote to the Lords  19 of Trade expressing in the quote "protecting their  20 possessions and property and securing to them all the  21 possessions, rights and privileges they have hitherto  22 enjoyed."  The need for conciliation, and for  23 protection of the Indians and their property, is  24 perceived as a general problem requiring comprehensive  25 measures.  26 In its report to Egremont of June 8, 1763, and much  27 has been said of this and no doubt much more will be  28 said of it, the Board of Trade spoke of the fur and  29 skin trade as involving "all the Indians in North  30 America", again "all the Indians upon the immense  31 continent" and again the language "all the Indian  32 tribes upon the continent of North America."  This  33 language reflected the broad perspective in which the  34 question was being considered.  35 On August 5, 1763, Sir William Johnson stated and  36 referred to "the great number of hitherto unknown  37 tribes and nations which are now under His Majesty'  38 immediate protection" and make known their proposal to  39 issue a Proclamation creating a territory closed to  40 land and settlements, and "free for the hunting  41 grounds for the Indian nations", and for fur trade.  42 It is significant here that the board spoke of Indian  43 tribes which, although unknown at that time, had  44 fallen under the Crown's protection.  45 In his reply entitled "Enumeration of Indians  46 within the Northern Department, I note here this is  47 after the issuance of the Proclamation on November 18, 23906  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  1763, William Johnson described the Ottawas in part as  numerous people who "...cannot be ascertained as those  of their confederacy residing near the out forts", and  the Illinois, as Indians we have "hitherto had nothing  to do with these people who are numerous and variously  computed."  And finally the Sioux who reside in the  country westward of the Mississippi and, we will also  argue to the north of the headwaters of the  Mississippi, "who are the most numerous of the  northern Indians, are little known to us."  So those were Johnson's views a month after the  issuance of the Proclamation.  On September 19th, just coming back to the  documentation prior to the Proclamation, the Earl of  Halifax replied to the Board of Trade expressing the  King's approval of the idea of issuing a Proclamation  and conveying his opinion that the instrument should  also, inter alia, "prohibit private purchase of lands  from Indians" and "declare a free trade for all His  Majesty's subjects with all the Indians, under  licence, security and proper regulations."  He later  emphasized the importance that there be free trade  with all of the Indians of North America.  Now, my lord, this preceding and in the one case  posterior, official documentary record, we say are  consistent with the conclusion that the mischief was  considered to be generalized and common to all of the  Indians living under British protection.  The category  of Indians affected by the Proclamation and described  in the preamble of Part IV, encompasses all Indians  occupying territories claimed by the British Crown in  North America, in October, 1763, whether or not they  were specifically known to the Crown, allied with it  or connected with it in fact.  :  That reference to the Sioux is disturbing because or  puzzling is a better word, because that territory had  been expressly ceded to France.  Well, my lord, the Sioux, the point that I make is  that the Sioux were known to be to the west,  northwest, and east of the Mississippi.  So only the  Sioux to the west of the Mississippi was still within  the boundary of Louisiana.  The Sioux that's there  referred to as "unknown in number" and I suppose in  specific designation, are Sioux that were known to be  north of the headwaters of the Mississippi and to the  northwest, if you will, and I will be directing you to  maps that demonstrate that, and they were also eastern 23907  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Sioux.  THE COURT:  This passage in the middle of page 85, I am not sure  what the real quote is.  You start the quote "who are  in the most numerous" and I wonder -- well, perhaps  sometime you could let me have the reference.  MR. RUSH:  The direct reference —  THE COURT:  To see what the full quote is.  MR. RUSH:  For what this, my lord, what -- for greater  specificity what should have been added here is "who  reside in the country westward and northwestward of  the Mississippi and who are the most numerous of the  most northern Indians who are little known to Us."  The point that is made here is that one month after  the Proclamation, Johnson was saying that although we  know they are there, we don't know very much about  them.  And the point is that not knowing very much  about them, they were still included within the reach  of the Proclamation.  THE COURT:  All right.  MR. RUSH:  Now, my lord, I would like to move to our next point,  which is at 87 and this is the Geographical Scope of  the Proclamation.  And our general proposition is  this:  That those general provisions of the Royal  Proclamation of 1763, which restrict land grants,  settlement or private purchases of lands reserved to  the Indians, were intended to apply to all parts of  North America over which the British Crown claimed  dominion as against other European powers.  This is  what the Proclamation says on its face.  THE COURT:  Do you say that the British Crown claimed dominion  over the westcoast of North America at this time?  MR. RUSH:  My lord, what we say is that as at 1763, nothing  precluded the Proclamation from applying to British  North America and to the Pacific Northwest coast.  That's not really my question though, is it?  I am  just trying to determine whether at that time there  was any claim to dominion over the westcoast.  My lord, the Proclamation was an expression of what  the Crown can do in respect of land.  THE COURT:  Yes.  MR. RUSH:  And that applied to all of its territories which it  knew about in 1763.  Now, admittedly, the Crown knew  nothing about the land mass of what is present day  British Columbia, although it knew, in our submission,  about the outline and indeed the existence of the  Pacific Coast.  But as to its claim to the land of  what we now know to be British Columbia, in our  THE COURT  MR. RUSH: 2390?  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  submission, they did not, the reach of the  Proclamation was not such as to reach to that land.  :  Unless it could be said that the reach of the  Proclamation was co-existent with the reach of the  Charter of the Company of Adventurers, which itself  may have reached the Pacific Coast.  My lord, in both cases, the reach was to the  indefinite west and our argument is that the  indefinite west could include to the Pacific Coast.  But, what we say is that the Proclamation's terms in  regard to land has nothing to do with the Crown's  ability to set up a government and effect sovereignty,  which we say did not arise until 1846.  :  Yes.  Now, and this proposition, my lord, we set out here  in part, we do a review again for the purpose of  determining the geographical scope of the land  referred to in the Proclamation by reference to,  first, paragraph one, and I am not going to read this  in whole again, but simply to direct your attention to  the three last lines on paragraph one of part four,  "or upon any lands whatever which not having been  ceded to or purchased by us, as aforesaid, reserve to  the said Indians or any of them."  And then in regard to paragraph 2 of Part IV, I ask  you to note these words, "and we do further declare to  reserve under our sovereignty, protection and  dominion, all the lands and territories for the use of  the said Indians all the lands and territories not  included within the limits of our said three new  governments."  And with regard to paragraph 3, I would ask you to  note in the third line, "or upon any lands which not  having been ceded to or purchased by us", and in  paragraph 4 the words in the third line, "the said  Indians of any lands reserved to the said Indians  within those parts of our colonies where we have  thought proper to allow settlement."  Part IV of the Proclamation was intended to apply  to all parts of North America over which the British  Crown claimed dominion.  And this is evident from the  claims inherited by the British from the French and  the contemporary cartographic knowledge of North  America.  What then were these French claims?  I draw  you first to the Treaty of Paris.  By virtue of the  conquest of New France, my lord, Britain inherited  France's claims to dominion over the western and 23909  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  northwestern parts of what is now Canada. The Treaty  of Paris, and I direct your attention specifically to  the underscoring portions, in Article IV stated:  " full right, Canada with all its  dependencies ..."  And further down,  "and in general, everything that depends on the  said countries, lands, islands and coasts, with  the sovereignty, property, possession and all  rights acquired by treaty or otherwise which  the Most Christian King and Crown of France  have had until now over the said territories."  THE COURT:  Christian King there is the King of Spain is it not?  MR. RUSH:  France.  THE COURT:  I see.  Christian King and Crown of France are the  same?  I thought I read somewhere where --  MR. RUSH:  You see, my lord, at the beginning it says "His Most  Christian Majesty cedes and guarantees to His said  Britainic Majesty.  THE COURT:  That's right.  You must be right.  Thank you.  MR. RUSH:  Now, my lord, France's claim to the unlimited west,  it's our submission that the French claims were of  considerable antiquity and were founded not only on  actual exploration and occupation but also on informed  speculation about the geography of the North American  interior, which in turn was based on the  interpretation of Indian accounts and other evidence  much of this speculation is embodied on historic maps.  The defendants' witness, Dr. Farley, agreed that  when assessing historic maps the fact of the  geographical beliefs held by the map maker, not their  accuracy, is what matters.  And that I have cited the  passage from the transcript.  Just dealing, my lord, with the early maps of North  America.  Dr. Farley agreed that at a very early date  both the both the French and the British, as well as  other Europeans, had realized that North America was  its own continent, separate from Asia.  And I there  refer your lordship to the Zaltieri's map of 1566,  Mercator's map of 1587.  These are contained in Dr.  Farley's large white bound map sweep.  Dr. Farley agreed with the proposition that it was  the exact shape of the western coast of North America 23910  Submissions by Mr. Rush  1 that was then a matter for speculation, not the  2 existence of the coastline itself.  3 Now, under the heading of The Search For The South  4 Sea, the French believed that the south sea or Pacific  5 ocean, lay on the other side of the North American  6 continent.  It was French policy from the very  7 earliest date to push across the continent rather than  8 attempt to discover a route to the south sea by means  9 of maritime exploration.  The French believing, my  10 lord, that they could get there overland rather than  11 by sea.  Dr. Farley agreed that according to the  12 documentary record, the early French exploreer, Samuel  13 de Champlain, believed that the Pacific Ocean lay  14 somewhere on the western side of the North American  15 continent, though he didn't know how far or where the  16 connection lay.  Then what follows, my lord, are the  17 transcript references for Champlain's belief about the  18 ocean on the western side of North America, and I  19 would ask you to peruse those but I don't intend to  20 read them.  21 On 93, the Jesuits too were searching for an  22 overland route to Japan and China and from Indian  23 accounts they believed they had found a third inland  24 sea which joined the western or Pacific sea somewhere  25 in the western interior of North America.  26 Now, Mer De L'Ouest or Western Sea.  27 By the time that French explorers discovered the  28 Mississippi in the latter half of the 17th century,  29 they had come to believe that somewhere in the west  30 there was a divide where a river flowing eastward had  31 its headwaters and on the other side of that headwater  32 there must be a river that led to the Pacific.  Dr.  33 Farley agreed with that.  34 And, my lord, I direct you to Coronelli's map of  35 1688, also in Mr. Farley's map sweep depicting these  36 discoveries and on that there was a chain of mountains  37 indicating to the west, indicated to the west of the  38 Mississippi.  39 Now, I will just ask you to review the paragraph  40 dealing with the Explorations of Marquette and Jolliet  41 and over to 94, Dr. Farley stated that for all the  42 colonists, English and French, it was a widely held  43 concept that there was a sea of the west and if one  44 got to the sea of the west one might find a river that  45 would drain off the Mer du Sud or Great Pacific Ocean.  46 This western sea was considered to be a semi-inland  47 sea which was separate fro, thought it debouched into, 23911  Submissions by Mr. Rush  1 the Pacific Ocean.  2 By a formal declaration at Sault Ste. Marie in  3 1671, France claimed dominion over the western reaches  4 of the North American continent but both discovered  5 and as yet undiscovered.  It did not matter to the  6 claims that parts of America were undiscovered or  7 unknown to them.  8 What I have then set out, my lord, is the passage  9 from the instructions, the bottom of 94.  10 THE COURT:  Do you have the citation for that Sault Ste. Marie  11 declaration.  12 MR. RUSH:  Excuse me, my lord?  13 THE COURT:  Yes, I do.  14 THE COURT:  Can you give me a citation of that sometime?  15 MR. RUSH:  Yes.   It follows next, my lord, if you wish I will  16 just go in to it.  17 THE COURT:  No, no, just the citation.  18 MR. RUSH:  You will see that Talon, the Intenddant of New  19 France, gave to the Sieur de Saint Lusson,  20 instructions to proceed to the upper Great Lakes and  21 determine whether there was a communication between  22 Lake Superior and "the Sea of the South which  23 separates this continent from China."  24 And there is the transcript reference and as well  25 the document reference, 1554-3.  Now, according to the  26 process-verbal, the communication, Saint-Lusson had  27 also been ordered to plant the cross and raise the  28 escutcheon of France in the first village they  29 encountered in  order "to confirm his Majesty's  30 authority and the French dominion over it."  Perhaps  31 this is more apropos to your lordship's question, on  32 June 4, 1671, Saint-Lusson met with a number of Indian  33 nations at Sault Ste Marie and proclaimed that he was  34 taking possession of the upper lakes "and of all other  35 countries, rivers, lakes and tributaries contiguous to  36 and adjacent thereto, as well discovered as to be  37 discovered, which are bounded on the one side by  38 northern and western seas and on the other side by the  39 South sea, including all its length and breadth."  40 That is Exhibit 1027-4, page 804.  41 Saint-Lusson declared to the aforesaid nations,  42 that henceforward "they were dependent upon his  43 Majesty, subject to be controlled by his laws, and to  44 follow his customs, promising them all protection and  45 succour on his part against the incursion or invasion  46 of their enemies, declaring unto all other Potentates,  47 princes and sovereigns, States and Republics to them 23912  Submissions by Mr. Rush  1 and their subjects that they cannot or ought not to  2 seize on or settle in any places in said country,  3 except with the good pleasure of Hissaid most  4 Christian Majesty, the King of France, and of him who  5 will govern the country on his behalf on pain of  6 incurring his hatred and the effect of his arms."  7 Once again, my lord that's to be found on page 804  8 of that.  9 Among those attending the ceremony at Sault Ste.  10 Marie, were a number of Jesuit fathers.  The Jesuits  11 reported their belief that it was not more than 300  12 leagues from Sault Ste. Marie to the limits of the  13 lands which border the Vermilion or South Sea, and  14 that it would not take more fifteen hundred leagues of  15 navigation to reach Tartary, China and Japan.  16 By these pronouncements, my lord, the French  17 claimed all the lands to the Pacific Ocean,  18 "discovered" and "to be discovered".  Their perception  19 then, was that it was only three hundred leagues to  20 the west coast from Sault Ste. Marie.  21 THE COURT:  Have we ever settled how far a league league was?  22 MR. RUSH:  Well, I think, my lord, a French league is equal to  23 three miles.  24 Now, 18th century maps by French cartographers  25 continued to demonstrate this mixture of real and  26 spurious geography of the North American interior.  27 Little distinction was drawn between the two.  28 Dr. Farley agreed that in his map of 1700, the  29 French cartographer, Sanson, was drawing on accounts  30 by the Jesuits and other French explorers, when  31 depicting a western sea and a northwest passage  32 connecting the sea of the south to the sea of the  33 north.  Sanson's depiction of a "Detroit d'Anian" or  34 Strait of Anian, was taken from older geographical  35 concepts.  36 The 1703 Delisle map is sceptical on its face of  37 the Baron de Lahontan's supposed overland travels to  38 the land of Moosemlek - connected to one of the  39 western tributaries of the Mississippi by a "Riviere  40 Morte" or dead river - the Delisles nonetheless  41 believed in the existence of a western sea and in the  42 prevailing speculative geography.  43 I would like to refer you to this passage of the  44 testimony and questions and answers with Dr. Farley  45 and in particular to Dr. Farley's answer to the first  46 question:  47 23913  Submissions by Mr. Rush  1 "A   To the sea of the west, yes.  Yes, that's part  2 of the long held concept by the colonists of  3 New England and New France.  4 Q   And is it not the case, Dr. Farley, from your  5 knowledge of Delisle that Delisle himself  6 believed in the existence of a Sea of the West  7 which would lead to the Pacific?  8 A   Yes, I think that's a fair statement.  Again,  9 these are long held or this is a long held  10 belief as I have said several times, a long  11 held belief, and it is reasonable to expect a  12 cartographer to have that in mind when he has a  13 new piece of information, as he thought he had  14 in the case of the Lahontan narrative, new  15 piece of information that he may well hive a  16 particular interpretation to in light of theis  17 long held concept."  18  19 Now, the French exploration to the Rocky Mountains,  20 my lord, Dr. Farley originally stated in his 1960  21 doctoral thesis that the Sieur de la Verendrye and his  22 sons represented the culmination of French efforts to  23 penetrate to the Pacific.  In the period 1731 to 1749,  24 they approached the Rocky Mountains and the come to  25 within striking distance of the sea.  I then set out  2 6 la Verendrye's post as Commander.  And that he derived  27 information from a Cree Indian named Ochagach, and in  28 that last line of that paragraph, Dr. Farley agreed  29 that la Verendrye spent the next decade trying to  30 determine the truth of the Ochagach Indian map.  31 Now, my lord, in Nicolas Bellin's last 1752  32 manuscript map shows the location of la Verendrye's  33 first two inland posts northwest of Lake Superior,  34 Fort Saint Pierre on Tgagamigoine, (Rainy) Lakes,  35 built in 1731 and Fort St. Charles on Lake of the  36 Woods.  37 By 1741, la Verendrye and his sons had extended  38 their networks of posts into what is now western  39 Canada, building at the entrance of Lake Winnipeg,  40 Fort Maurepas; on the Assinboine River, Fort La Reine,  41 as well as at the forks of the Red River and the  42 Assinboine, Fortla Fourche; on Cedar Lake, northwest  43 of Lake Winnipeg, For Bourbon; and between Lake  44 Dauphin and Lake Winnipegosis, Fort Dauthin.  Most of  45 these posts, my lord, are shown on Nicolas Bellin's  46 1755 map of new France.  47 And I am going to ask you to, and perhaps we can do 23914  Submissions by Mr. Rush  1 that after the break or during the break, I am going  2 to ask you to direct your attention to that map.  If I  3 just may complete to the end of this page, my lord.  4 In 1738-39 as part of his search for a route to  5 the western sea, la Verendrye travelled south from For  6 La Reine to the country of the Mandan Indians coming  7 within a short distance of the Missouri River.  In  8 '42-'43 one of his sons repeated his journey and  9 ascended the Missouri drainage system, a considerable  10 distance to the westward.  How far he and his  11 companions actually got is unknown.  But it is  12 generally-accepted that they came within sight of the  13 Rocky Mountains.  Even if the younger la Verendrye did  14 not actually reach the Rocky Mountains, by this  15 southern route, the French had nevertheless learned of  16 a number of hitherto unknown Indian nations living to  17 the west.  la Verendrye's son also learned,  18 undoubtedly from the Indian accounts, that there were  19 whites living at the sea which lay at the end of his  2 0 uncompleted journey.  In an undated memorandum in the  21 la Verendrye papers in the National Archives of  22 Canada, the exploreer lists various tribes inhabiting  23 the upper Missouri watershed and concludes by stating:  24  25 "Upriver from are the Brochets are the Gros  26 Ventres, then the Grand Oreilles who live at  27 the height of land.  After the latter Gens du  28 Serpent (Snakes) who are said to be much more  29 numerous than all the other nations and are  30 their enemies, then couple the noirs (blacks)  31 and after the noirs, the whites of the sea.  32 (Les Blancs de la Mer)."  33  34 Now, my lord, on this passage I think it's fair to  35 conclude that the Gens du Serpent were likely the  36 Shoshoni or Snakes who lived in the mountainous  37 regions which are now Idaho and Montana.  38 The blacks were probably the Blackfoot who  39 historically occupied lands between the Missouri and  40 Saskatchewan Rivers in present day Montana and  41 Alberta.  42 The Whites of the Sea were presumably the Spanish  43 of California.  Bougainville, who in 1757 rendered a  44 slightly different account of la Verendrye's travels,  45 states that the Gens de Serpent extened to the foot of  46 a chain of high, very high mountains south of which  47 was a river that is supposed to reach California. 23915  Submissions by Mr. Rush  1 Dr. Farley agreed that during the 1740s and early  2 1750s, la Verendrye, as well as his sons and  3 successors, continued their search for the western sea  4 by means of the Saskatchewan River.  5 And I can pause there, my lord, and pick up on that  6 exploration after the break.  7 THE COURT: All right.  Thank you.  8  9 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING RECESS)  10  11 I hereby certify the foregoing to be a true  12 and accurate transcript of the  13 proceedings herein to the best of my skill  14 and ability.  15  16  17  18  19 Wilf Roy  20 Official Reporter  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 23916  Submissions by Mr. Rush  1 THE REGISTRAR:  Order in court.  2 MR. RUSH:  My lord, I provided the copy of the instructions for  3 Your Lordship, and I don't intend to refer to them  4 further, but only to have them there for your  5 reference.  It's 1027-4, page 84.  It's the second of  6 the two copied pages.  7 THE COURT: This is the Sault Ste. Marie declaration?  8 MR. RUSH:  That's right.  9 THE COURT:  Yes, all right.  Thank you.  10 MR. RUSH:  Now, my lord, I also placed in front of you the map  11 of Bellin's, 1755, and I note that the references that  12 I have made to the map that I am going to direct your  13 attention to are not in the text of my argument, and  14 if I can just turn to that now on page 101.  15 Throughout we make reference to Bellin's map.  16 THE COURT:  Yes.  17 MR. RUSH:  And it was first introduced by Mr. Morrison as  18 Exhibit 1027-29.  19 THE COURT:  Yes.  20 MR. RUSH:  And then it was reintroduced in the evidence of  21 Mr. — or Dr. Farley, 1149-14.  And that's part of his  22 sweep that is in front of you.  2 3 THE COURT: Yes.  24 MR. RUSH:  And then, my lord, the copy which contains the yellow  25 boundary lining, which was introduced in the  26 re-examination or cross-examination of Dr. Farley is  27 Exhibit 1027-29A, and it's to that copy which is  28 the -- or original copy signed by Mr. Dahl of the  29 National Archives that I wish to direct your  30 attention.  And I think because of the fact that the  31 notations were made on the copy on Dr. Farley's map  32 sweep, I think really it would be necessary to keep  33 the two copies before you at the same time.  The copy  34 in Dr. Farley's sweep did not contain the coloured  35 lining of the various territories to which I will be  36 shortly drawing your attention.  37 But continuing on to 101.  As I indicated, Dr.  38 Farley agreed that during the 1740 's and early 1750's  39 La Verendrye as well as his sons and successors  40 continued their search for the Western Sea by means of  41 the Saskatchewan River.  42 On Nicholas Bellin's 1755 map of New France, and I  43 just ask you to add there Exhibit 1027-29A, Riviere  44 Blanche or White River flows by Fort Bourbon at a  45 place called Paskoyac.  And Dr. Farley agreed this was  46 the Saskatchewan River.  47 Dr. Farley also agreed that the modern town of La 23917  Submissions by Mr. Rush  1 Pas, Manitoba, is probably derived from the word  2 Paskoyac.  And there is still a Pasquia Lake just to  3 the south of La Pas, in northwestern Manitoba.  4 Moving to the next paragraph.  In about the year  5 1748 La Verendrye established a Fort Paskoyac on the  6 Saskatchewan River to the west of Cedar Lake at the  7 forks of the Saskatchewan.  8 In 1757 Bougainville mentioned another French  9 post, called Fort des Prairies, which had been built  10 80 leagues further up the Poskoia or the Saskatchewan  11 River.  12 I wish to pause at the top of 102 to emphasize  13 this point, that the posts established by La Verendrye  14 and his successors were commonly known and  15 subsequently referred to throughout the documentary  16 record as the posts of the Western Sea or Sea of the  17 West in short.  La Verendrye's exploring expeditions  18 were continued by Jacques Legardeur de Saint Pierre, a  19 captain of the troops detached from the marine in  20 Canada, who in 1750 was charged by the King of France  21 with the discovery of the Western Sea.  22 In answer to a question from the court, Dr. Farley  23 stated that the Western Sea in the context of this  24 document meant an abayment of the Pacific Ocean of  2 5 some sort.  26 Now, according to the memoire which wrote in 1752  27 Saint Pierre sent a subordinate officer, de  28 Niverville, to establish a post 300 leagues inland  29 from Paskoya, an order which said Saint Pierre was  30 executed on May 29, 1751.  31 This, my lord, is contained in the document  32 reference 1154-4, and the page numbers are given  33 there.  34 De Niverville, being ill himself, sent off two men  35 and two canoes who ascended the River Paskoya as far  36 as the Rocky Mountains, where he made a good fort.  37 Saint Pierre named this Fort Lajonquiere, after the  38 Governor of New France.  39 Now, the new post ran into trouble because, so  40 Saint Pierre was informed, the Assinipoels had  41 attacked their enemies, the Yhatchelini.  42 And, my lord, I would like to note the names of  43 these Indian peoples that are recorded in this -- in  44 this early memoire.  At the end of that first indented  45 passage from the memoire it says:  46  47 "This is the result of the Assinipoels going to 2391?  Submissions by Mr. Rush  1 where the French were newly established at the  2 Rocky Mountains, found the Yhatchelini there to  3 the number of forty to forty-five cabins."  4  5 Saint Pierre eventually heard directly from  6 Niverville, who gave new details of the settlement  7 near the Rocky Mountains:  8  9 "He gave me an account of what he had learned at  10 the settlement he had made near the Rocky  11 Mountains, that a party of Indians, who were  12 going to war, met with the nation loaded with  13 beaver, who were going by a river which issues  14 from the Rocky Mountains, to trade with the  15 French who had their first establishment on an  16 island at a small distance from the land,"  17  18 And he goes on to talk about that trade.  He goes  19 at the bottom of this passage.  20  21 "These Indian positively asserted that the  22 traders were not English.  The establishment is  23 by compass west by west, which cannot possibly  24 belong to them."  25  26 Now, my lord, in our submission there is no doubt  27 from this account that Fort La Jonquiere was located  28 at the foot of or near the Rocky Mountains.  This was  29 the most westerly extension of the French fur trade  30 explorations.  And I wish to point out to Your  31 Lordship in the Canadian west, what is now the  32 Canadian west.  33 However, there has been some, and I'm going onto  34 page 104, dispute among historians as to the exact  35 location of Fort Lajonquiere, and around whether or  36 not it was really close to the Rocky Mountains.  37 And I say simply, my lord, that the editor of  38 Bougainville's 1757 memoire placed the fort on the  39 site of the modern day Calgary.  40 MR. GOLDIE:  I think there has been some dispute as to whether  41 it exists or it existed too, my lord.  42 MR. RUSH:  I don't think there -- I disagree with my friend on  43 that account.  I don't think there is a question of  44 whether it existed.  The question is where did it  45 exist.  And that's the issue.  And my friend will, I  46 know, make submissions to you on that subject.  But  47 here what we say, my lord, is that -- referring, for 23919  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  THE  COURT  13  14  15  MR.  RUSH:  16  17  18  19  20  21  THE  COURT  22  23  24  MR.  RUSH:  25  26  27  28  THE  COURT  29  MR.  RUSH:  30  THE  COURT  31  MR.  RUSH:  32  THE  COURT  33  34  35  36  MR.  RUSH:  37  THE  COURT  38  MR.  RUSH:  39  40  41  42  43  44  45  46  47  THE  COURT  example, to Dr. Greenwood's re-examination on this.  Reference was made to certain secondary sources,  including the historical atlas of Canada, which placed  the fort no further west than the forks of the  Saskatchewan River.  Now, we say that the most  reliable evidence in this regard is the primary source  of Saint Pierre's memoire.  Nevertheless, wherever the  fort was actually situated, it was closer to the  mountains than the central part of Saskatchewan.  Dr.  Farley himself concedes that de Niverville probably  reached the plains of Alberta.  :  Didn't he give a name to some mountains that had  been called the Rockies?  What he said were really --  and not Big Horn, but -- but something Horn Mountains.  I don't recall that evidence on this issue, but he  agreed that there were mountains to the west called  the Mountains of the Bright Stones, and those  mountains were the Rocky Mountains.  Now, he may also  have referred to evidence, other evidence of other  mountains.  :  I have a note of it, but I don't have it right in  front of me right at this moment.  I think he was  talking about La Verendrye anyway.  The only mountains west of the plains of Saskatchewan  are the Rockies, and I think that's true today and it  was true then.  Now, I say, my lord --  :  You are sure about that?  Well -- I don't know.  :  Go ahead.  I'm sure of some things more than --  :  Dr. Farley mentioned some mountains that he said he  thinks were described by either La Verendrye or by De  Niverville as the Rockies, but which he thinks were  really, and I think it's Horn something --  Well, my lord --  :  Or Corne -- no Horn.  He referred to a fort of a captain called La Corne,  and La Corne established a fort not surprisely by his  own name, and it was one of the forts of the Western  Sea, and the issue there was, was Fort La Jonquiere to  the west of La Corne, or was it to the east?  And, my  lord, in my submission this record demonstrates that  La Jonquiere was established for a short period of  time to the west, either at the foothills of the  Rockies or in the plains of Alberta.  :  I was embarrassed because I had never heard of these 23920  Submissions by Mr. Rush  1 mountains that he had mentioned.  I'll dig it up for  2 you at lunch time.  3 MR. RUSH:  I think that the other conceivable reference is that  4 to the southern explorations into what is now the  5 United States, where there are mountains west of the  6 Mississippi and before you get to the Rockies.  7 THE COURT:  Yes.  8 MR. RUSH:  Now, carrying on at the bottom, my lord.  9 It's our submission that the only primary documents  10 which discusses the fort's location is before Your  11 Lordship, namely, and that is Saint Pierre's journal.  12 And any other conclusions about the fort are based on  13 suppositions.  14 Saint Pierre's journal clearly mentions the Rocky  15 Mountains.  The French must have come close enough to  16 notice this prominent geographical feature.  And I say  17 how could anyone miss it?  It would be impossible to  18 see the Rocky Mountains from central Saskatchewan.  19 Now, Saint Pierre's journal mentions the  20 Yhatchelini, and this is the significance of this, my  21 lord, as the Indian tribe who lived near the Rocky  22 Mountain fort, and that they were constantly at war  23 with the Assiniboine.  The Yhatchelini were probably  24 the Blackfeet Indians who lived between the Upper  25 Missouri and the Saskatchewan.  26 Now, my lord, just -- I want to refer you to the  27 fact that in 1801, 50 years later, after the founding  28 of Fort La Jonquiere, a Blackfoot Indian chief drew  2 9 for the Hudson's Bay Company a map of the river and  30 mountain systems between the Upper Missouri River, the  31 Saskatchewan River and the Pacific Coast, showing the  32 location of Indian tribes living both south and west  33 of the Rocky Mountains, as well as on the western  34 plains.  His tribe's location is consistent with the  35 Yhatchelini discussed by Saint Pierre.  The 1801 map  36 also establishes that the Blackfoot were then in  37 contact with many tribes living on the other side of  38 the Rocky Mountains.  It refers to a large river,  39 probably the Columbia, is one of a number shown  40 flowing to the sea coast.  And this information, we  41 say, is consistent with de Niverville's statement  42 related to Saint Pierre, that a party of Indians from  43 near his fort, who were going to war, had met a nation  44 loaded with beaver, who were going by a river which  45 issues from the Rocky Mountains, to trade with the  46 French who had their first establishment on an island  47 at a small distance from the land. 23921  Submissions by Mr. Rush  1 Now, my lord, the Indians told de Niverville that  2 these traders on the sea coast were French and  3 certainly not English, and that they trade knives and  4 lances as well as horses and saddles for their  5 beavers.  Dr. Farley agreed, based on the date  6 1751-52, that these traders may have been either  7 Spanish or Russian.  Now, the Ac ko mok ki map of  8 1801, together with the Saint Pierre journal, makes it  9 clear that the fort was located at the foot of the  10 Rocky Mountains, and that the French reached that  11 point in their western explorations.  12 Now, my lord, what we say is that probably the  13 exact location of La Jonquiere is not critical, since  14 it was destroyed soon after it was built.  What is  15 relevant is that the French, by 1751-52, were already  16 in at least indirect contact with Indian tribes who  17 lived between the Rocky Mountains and the Pacific  18 Coast.  And I say that this is the inescapable  19 conclusion to be drawn from the Saint Pierre journal.  20 Now, let's -- I wish to turn to the map knowledge  21 at the time and the explorations as mapped by the  22 French cartographic school on 107.  23 Certain of the influential French cartographers  24 had access to the reports and maps of La Verendrye and  25 other explorers, and visually rendered on their maps  26 many of the La Verendrye discoveries in the North  27 American interior.  It was the belief of these  28 cartographers that the Pacific Ocean lay on the other  29 side of the North American continent, though they  30 differed about what lay in between.  31 The most famous of these cartographers was  32 Nicholas Bellin, and it's his map that I am directing  33 your attention to now, my lord.  34 In the remarks which Bellin published to a company  35 his 1755 map of North America, he stated his belief  36 that the La Verendrye's discoveries had almost  37 confirmed the prevailing belief that the ocean could  38 be reached by an overland route to the far west.  39 And I ask you to look at the underscoring:  40  41 "Hence the later discoveries of the French in  42 those parts have only confirmed our previous  43 conjectures and almost converted them into  44 certainty."  45  46 This is 1755.  Now, my lord, I ask you to look at  47 the -- at the map in conjunction with the argument 23922  Submissions by Mr. Rush  1 here.  His understanding, that is to say Bellin's, is  2 demonstrated in the 1755 map, where he, Bellin, draws  3 the river of Assenepouals, which Dr. Farley agreed is  4 the modern Assiniboine River, and writes "Assiniboine  5 River, which it is possible to believe flows to the  6 Western Sea".  And just past the source of the  7 Assiniboine River, as shown on the map, Bellin  8 inserted some text, which Dr. Farley agreed reads,  9 "Mountain of bright stones according to the report of  10 the savages".  11 Now, Bellin had taken this information from the  12 map drawn for La Verendrye by the Indian Ochagach, as  13 he states in the report which accompanied the map.  14 And I've included that text there.  15 Now, my lord, Bellin also shows the Riviere  16 Blanche on the northwest side of Lake Winnipeg, and  17 marks it as open-ended to the west.  And Your Lordship  18 has marked that in yellow or blue or in some  19 highlighter I know.  20 Now, my lord, the most westerly post which Bellin  21 indicates on the Saskatchewan drainage is Fort  22 Bourbon.  He does not show Fort Paskoyac, nor the Fort  23 des Prairies further upriver mentioned by Bougainville  24 in 1757.  25 Bellin makes it clear that he had read the journal  26 of Legardeur de Saint Pierre for the year 1750.  We  27 say had he read the Saint Pierre journal for 1752, he  28 undoubtedly would have placed Fort La Jonquiere on his  29 1755 map.  30 Now, as noted above, Saint Pierre's assistant, De  31 Niverville, did establish trading relations in '51,  32 '52 with the most distant Indian Nations.  33 Another French cartographer who had access to the  34 documents of La Verendrye and other French explorers  35 was Phillip Buache.  And a map which he published in  36 1754 is entitled "Physical Map showing the highest  37 lands" et cetera, and that's 1154-8.  Buache  38 interpreted the French discoveries as proving the  39 existence of a chain of mountains and the Western Sea  40 between the interior lakes and the Pacific Ocean.  On  41 the left-hand side of the map is the depiction Mer de  42 l'ouest, which Dr. Farley agreed was the Western Sea,  43 while between the sea and Lake Bourbon is depicted a  44 chain of mountains or other high land.  45 Depictions which to some degree are similar in  46 large part to those placed on his map of 1755 by  47 Bellin. 23923  Submissions by Mr. Rush  1 Now, regarding the Russian discoveries from the  2 maritime side, by 1750 various French maps were  3 already showing a continuous west coast.  Included on  4 them were not only the Western Sea and other supposed  5 discoveries of Juan de Fuca and Admiral de Fonte in  6 the northwestern parts of North America, but the  7 recent Russian discoveries as well.  8 In 1750, as we know, my lord, the younger brother  9 of Guillaume Delisle, accompanied the Russian -- he  10 had personal knowledge of the Russian expeditions.  11 On Delisle's 1752 map he records between 55 and 59  12 degrees north latitude lands seen by the Russians in  13 1741 where Captain Chirikov last lost his long boat,  14 which had ten men in it.  And that's Exhibit 1027-19.  15 And you note that according to Chirikov's own account  16 on July 25th, 1741, he and his men saw American  17 natives in two large rowboats with pointed bows coming  18 out towards them, and he assumed from their maneuvers  19 that they had either killed or captured the men he had  20 sent ashore.  21 Chirikov and his men sailed northward, and on the  22 following day, July 26th, 1741, cited land at 58  23 degrees 20 minutes.  Now, Delisle's brother, Louie de  24 la Croyere, had also lived for many years in Russia.  25 He actually sailed with Chirikov, but died on the  26 voyage.  Dr. Farley agreed that Delisle de la Croyere,  27 who had served 17 years with the French troops in  28 Canada before going to Russia, persuaded the leaders  29 of the expedition that the natives of the new coast  30 very much resembled the native inhabitants of Canada,  31 and that America had in fact been reached.  32 Now, regarding the De Fonte and De Fuca  33 discoveries and their map.  34 On Delisle's map of 1752 the annotation "entrance  35 discovered by Juan de Fuca in 1592", appears at about  36 the 47th or 48th parallel.  And next to that is the  37 Mer de l'ouest or Sea of the West, with the words  38 "discovered and crossed by Juan de Fuca in 1592".  Dr.  39 Farley agreed that Deslisle would have taken these  40 geographical features from the account of the voyage  41 supposely made by Juan de Fuca -- a Greek navigator in  42 the employ of the King of Spain -- first printed by  43 the Englishman Samuel Purchas in 1625.  44 Now, what then follows, my lord, are the  45 speculative geographic notations recorded by Deslisle  46 on his map of 1752.  And I'll -- I would ask you to  47 refer to those, but I am now going to direct your 23924  Submissions by Mr. Rush  1 attention on page 113 to the middle paragraph.  2 Though the Deslisle Buache maps were not accepted  3 uncritically, some dissenting catographers nonetheless  4 accepted the reality of a continuous Pacific Coast.  5 And G.F. Muller's map of the new Russian discoveries,  6 for example, printed in 1754, was, according to Dr.  7 Farley, intended to represent what was actually known  8 about the North Pacific.  9 Muller's map shows the position of Mount St.  10 Elias, and the coastal discoveries of Bering and  11 Chirikov in very accurate fashion.  12 On the other hand, Muller marks an opening on his  13 map just down the coast as "supposed river de las  14 Reyas of Admiral de Fonte in 1640", thus indicated his  15 scepticism about that discovery.  16 But I ask you to note, my lord, that in respect of  17 Muller's map, in about 45 degrees latitude  18 significantly Muller marks a river of the west flowing  19 to the sea, with the statement "entrance discovered by  20 Martin d'Aguilar."  He do not use the word "pretendue"  21 or "supposed".  Dr. Farley agreed that Martin  22 d'Aguilar was a real Spanish explorer, and neither  23 does Muller use the word "supposed" when noting the  24 entrance discovered by Juan de Fuca.  Muller also had  25 the river of the west connected to Lake Winnipeg on  26 the east, and apparently connected to the coast on the  2 7 west.  28 Now, regarding the continuous coast and its  29 mapping, Dr. Farley agreed that Muller's general  30 outline of a continuous coast was remarkably accurate  31 for the period, and he called it "inspired  32 conjecture".  33 Dr. Farley also agreed that Muller's conclusion,  34 as paraphrased by Glyndwr Williams, that the Russian  35 explorations had diminished the chances of finding a  36 passage through Hudson's Bay, because they seemed to  37 show that the American coast extended northwest as far  38 as Bering Strait.  39 Nicholas Bellin was another who was skeptical of  40 the cartography of J.N. Deslisle and Philippe Buache,  41 yet he too accepted not only the Russian discoveries,  42 but also some of the speculative geography of the  43 period.  44 And if Your Lordship will just refer to the Bellin  45 map, which is there in front of you, you will note  46 that although he does not himself show a continuous  47 coastline, he maps the Russian discoveries about 58 23925  Submissions by Mr. Rush  1 degrees north latitude, the discoveries of Chirikov.  2 And my note here is that this was -- Bellin indicated  3 the Russian discoveries as "Lands discovered by the  4 Russians in 1741 without having landed there", and  5 that would be the interpretation of the French, "or  6 without going ashore" at a latitude 56 degrees 30  7 minutes or 57 degrees 30 minutes.  8 Now, Bellin also indicates that the land in  9 between the coast that he maps there, he adds this  10 inscription, "one does not know if these are islands  11 or mainland", and as well the description a little  12 farther down, "it is not known whether there is land  13 or the sea in these areas".  14 Now, over to 116, my lord.  Nevertheless, Bellin's  15 map of 1755 does show a Mer de l'ouest or Western Sea  16 on his map, though he gives it only tentative  17 boundaries.  And Bellin also notes the entrance of  18 Martin Aguilar in 1603, as well as the entrance of  19 Juan de Fuca at 47 and 48 degrees north latitude.  20 Remarkably close, my lord, to where in fact the  21 entrance to Juan de Fuca Strait in fact is.  22 Now, dealing with the Bellin map.  The map in our  23 submission demonstrates French claims unlimited to the  24 west.  Now, on the copy obtained from the archives  25 with Bellin's original coloring reproduced on it, and  26 I would like to direct your attention to that now, my  27 lord, Bellin states in the upper left-hand corner in  28 French -- I think this is a faithful -- or rendering  29 of it that the French possessions are coloured in blue  30 and those of the English in yellow, and those of the  31 Spanish in red.  And Dr. Farley agreed that the red or  32 Spanish line appears to proceed no further north than  33 the entrance of Juan de Fuca.  Dr. Farley also agreed  34 that the blue or French line runs along the river  35 south and west of Lake Winnipeg marked Riviere des  36 Assinipoels or Assiniboine River, below which are  37 written the words "which it is possible to believe  38 flows to the Sea of the West".  The blue or French  39 line also covers the furtherest shown extent of the  40 Riviere Blanche or Saskatchewan River.  41 Now, my lord, the point to be drawn here is that  42 in 1755 it was Bellin's belief that as a result of the  43 knowledge from the La Verendrye explorations and the  44 positioning of the French posts of the western sea,  45 that the French were in the -- located at points north  46 of Lac Bourbon, and west of Lake Winnipeg in the  47 present day Canadian west.  And I think that this map 23926  Submissions by Mr. Rush  1 demonstrates where in Bellin's perception of the  2 information that he had, what the French possessions  3 were as at 1755.  And where the English possessions  4 were, as indicated by the yellow line, which, my lord,  5 you will see here is more closely approximate to the  6 bay of Hudson's Bay and probably what was thought by  7 Bellin to be the extent of the territorial claim of  8 the Hudson's Bay Company.  9 Now, I think it is evident, when you view this  10 map, that Bellin marked the French possessions as  11 opposed to those of the English or Spanish that those  12 were open-ended to the northwest.  And they included  13 lands of the present day Canadian west, north and west  14 of Lake Winnipeg.  And if the river of the west did  15 indeed flow all the way to the west -- excuse me, to  16 the Sea of the West, then these would be French  17 possessions.  And if the Riviere Blanche also led to  18 the sea, then the intervening territory was French.  19 Now, all that the map shows, my lord, is that it  20 demonstrates that the possessions were open-ended to  21 the west, and that that was an attempt to show the  22 unlimited west of the French possessions.  23 Now, carrying on at the bottom of 117.  Though by  24 1755, Bellin had discovered that the distance to the  25 coast was greater than he had originally thought, he  26 still believed that there was probably an overland  27 route to the Pacific.  And he stated as much in his  28 memoire to -- accompanying his map in 1755.  29 Now, on 118 there were other cartographers who  30 mapped France's unlimited west.  31 In the period prior to the conquest, other French  32 cartographers portrayed New France or Canada as having  33 an unlimited extent in the west.  This was the  34 prevailing view of the French school of cartography of  35 the day.  36 A map drawn by J.N. Deslisle in 1731 has written  37 across the central body of North America the words  38 "Pays Soumis a la France" or "Country in Submission to  39 France".  And I ask you to take note, my lord, of the  40 Mappe Monde Nouvelle by George-Louis Le Rouge of 1744.  41 This is Exhibit 1154-15B, and perhaps I'll get that  42 for you at the luncheon break.  It had printed on it  43 below the 50th parallel and running from the west  44 coast towards the east coast the words "Nouvelle  45 France ou Canada", meaning New France or Canada.  At  46 least in his mind it extended throughout most of the  47 body of North America. 23927  Submissions by Mr. Rush  1 Now, my lord, Joseph Vaisette, the French  2 geographer, described Canada in 1755 as being bounded  3 on the north by Labrador, and the countries of the  4 Eskimo and of the Cree on the east by the ocean or  5 north sea, and New England on the south by Louisiana.  6 And he says "its limits on the west extended into  7 countries unknown."  8 Well, in 1754 Boucault, who had been a French  9 official in Canada, described the colony to his  10 superiors in France as bounded on the west by Spanish  11 territories and by territories or seas, unknown  12 territories or seas.  13 Now, referring, my lord, to Canada's dependencies  14 and what we say that the dependencies that are  15 referred to in the official documents referred to the  16 unlimited west.  17 Now, in keeping with Canada's expanding boundary  18 to the west, commissions and instructions to the  19 colonial governors were kept deliberately vague, and  20 in his commission of 1755 Vaudreuil was appointed  21 governor and lieutenant governor in Canada, Louisiana,  22 Isle-Royale, Cape Breton, Isle Saint-Jean, Prince  23 Edward Island and other islands, lands and countries  24 in North America.  25 Now, in Vaudreuil's instruction, dated March of  26 1755, the government of New France was described as  27 comprising Canada, L'Isle Royale and Louisiana with  28 their dependencies.  29 Now, the question is what were the dependencies?  30 In those same 1755 instructions they refer to various  31 posts of the upper country which are commanded by  32 officers chosen by the governor general.  And it is  33 clear from the context that these posts of the upper  34 country were considered part of Canada with its  35 dependencies.  36 Now, my lord, articles 37, 39 and 46 of the  37 capitulation drafted by agreement between Governor  38 Vaudreuil and Geoffrey Amherst, the British commander,  39 also refers to the posts of the upper country.  And  40 though the English text uses the phrases "posts above"  41 and  "country above", the sense is the same.  The  42 original French articles say "postes d'en haut" and  43 "pays d'en haut", which the defendants' witness Dr.  44 Greenwood agreed should be translated as "upper posts"  45 and "upper country".  46 Dr. Greenwood also agreed that the phrase "upper  47 post" or "posts of the upper country" included in the 2392?  Submissions by Mr. Rush  1 context of the capitulation the posts of the Sea of  2 the West or Mer de l'ouest.  3 Now, my lord, those western posts were those  4 posts, we say, stated by La Verendrye or established  5 by La Verendrye and depicted on Bellin on a 1755 map  6 as the post called collectively the Western Sea or Mer  7 de 1'ouest.  8 Now, in addition and at the bottom of 120 to the  9 various maps referred to, there is ample historical  10 evidence to show that the posts of the Western Sea  11 were posts of the upper country, and that they were  12 part of the colony of Canada and its dependencies.  13 And here, my lord, I refer you to the -- in 1757  14 Bougainville stated that the "Post of the Western Sea"  15 or "La Mer de L'Ouest" is "the most advanced towards  16 the north...We can push further the discoveries we  17 have made in the country, and communicate even with  18 California".  And then Bougainville sets out the posts  19 of the Sea of the West and included Saint-Pierre,  20 Saint Charles, Fort Bourbon, Fort Dauphin, Fort  21 Paskoia and the -- he notes that the exact position of  22 the latter two is unclear, though Dr. Greenwood agreed  23 that they were definitely up the Saskatchewan River,  24 possibly at the forks.  25 Now, the editor of Bougainville's memoire  26 published in the Wisconsin Historical Collections  27 placed Fort Paskoyac, which the French had moved  28 further west in the early 1750's, just past the modern  29 Manitoba-Saskatchewan border, where a water route  30 branches north to the Nelson River.  The forks as the  31 location for Fort des Prairies would be consistent  32 with Bougainville's statement that it was 80 leagues  33 or about 240 miles further up the Poskoyac  34 (Saskatchewan) River.  35 Now, my lord, we say there can be little doubt  36 that the 1760 Articles of Capitulation contemplated  37 the posts of the western sea, among others, for, as  38 Dr. Greenwood agreed, the same Bougainville had  39 assisted Vaudreuil in drafting and negotiating the  40 French surrender at Montreal.  41 A 1754 memoire on the Canadian posts by the  42 Chevalier de Raymond contains a list headed  43 "Denombrement des Postes dans 1'etendue du gouvernment  44 general du Canada ou M(onsieu)rs officiers des troupes  45 vont commander, pourvu des ordres des Generaux qui en  46 font le choix."  And that can be rendered in English  47 as the "enumeration of posts within the general 23929  Submissions by Mr. Rush  1 government of Canada where the officers of the troops  2 go to take command, furnished with orders from the  3 generals who make the choice".  And under the heading  4 of "Posts du Nord" is number 4 La Mer du Ouest.  5 Now, I would like to go to 123, my lord.  I would  6 ask you to read over what Chevalier de Raymond says,  7 but I go over to 123.  8 Chevalier also used the word "dependencies" when  9 describing some of the posts.  And if the posts of the  10 western sea were not part of Canada itself, then  11 clearly they were among its dependencies, within the  12 meaning of Vaudreuil's commission and instructions in  13 the Treaty of Paris "Canada with all its  14 dependencies".  15 And I ask you to refer, my lord, to the use of the  16 word "dependency" in the passage that follows from  17 Exhibit 1168-5.  18  19 "Michillimakinac, its dependencies",  20  21 "La mer du Ouest, its dependencies and the  22 Paskouijas, 20 conges."  23  24 Now, it was logical for the boundary of Canada to  25 be opened-ended to the west, and I would add to the  26 northwest, because the French were continually  27 establishing relations with unknown Indian Nations  28 over whom France had been claiming sovereignty as  29 against other European powers since at least from  30 Saint Lussons prise de possession of 1671.  And I have  31 referred that to you, my lord, as Exhibit 102-4.  32 Now, I am going to ask you to take into account,  33 my lord, what is said at 125, the reference to the Mer  34 du Ouest and its dependencies, and to Nicholas  35 Bellin's memoire, and go to the bottom of 124.  36 Vaudreuil's 1755 instructions also confirm that  37 the definition of Canada and its dependencies extends  38 to the various nations who frequented the French  39 posts, or with whom the French had contact.  Thus,  40 Vaudreuil was to exercise special attention in chosing  41 commandants for posts in the upper country, as they  42 must possess sufficient knowledge to make them fit to  43 govern the various nations at such posts and those  44 which are in the habit of frequenting them.  45 And then moving to the third paragraph.  Vaudreuil  46 is then instructed to in these instructions to leave  47 the Indians to wander over the lands of the colony, 23930  Submissions by Mr. Rush  1 implying that the nations with whom the French had  2 contact and who were not on territory claimed by other  3 European powers were ipso facto within the colony.  4 And I ask you to look at the last sentence of the  5 indented portion:  6  7 "The Sieur de Vaudreuil must leave certain  8 nations at liberty to wander over the lands of  9 the colony, provided they receive no strangers;  10 for the latter point is the most essential."  11  12 Now, my lord, this certainly suggests that the  13 area over which the native peoples were wandering was  14 the area to which the French claimed authority and  15 over which they rejected claims by others, and I  16 suggest the others being the English under the  17 Hudson's Bay charter.  18 Now, on 126, dealing with the Indian allies of the  19 French.  Article -- well, Article XL, I can't remember  20 what that means now, of the Capitulation of Montreal,  21 like the instructions to Vaudreuil, refers to the  22 "savages or Indian allies of his most Christian  23 Majesty".  The article provides that such Indians  24 shall be maintained in the lands they inhabit, if they  25 chose to remain there, they shall not be molested on  26 any pretense whatsoever, for having carried arms, and  27 served his most Christian Majesty.  That is to say the  2 8 French King.  29 Now, during his re-examination, the defendants'  30 witness Dr. Greenwood was asked his opinion as to  31 which tribes would have been contemplated by this  32 phrase "savage allies".  And though he mentioned the  33 Chippewa and Ottawa, he expressly denied that any  34 tribes from the west of the Mississippi River or  35 northwest I would add were included in such category.  36 Now, we say Dr. Greenwood was in error in this  37 regards.  During the Seven Years War, a number of  38 Indians from the Mer d'Ouest or Western Sea, as well  39 as the other areas west and northwest of the  40 Mississippi River, fought on the side of the French.  41 A list headed "Table of Indians in the Marquis de  42 Montcalm's army, July 28, 1757, under the orders of  43 the MM. de La Corne and Saint Luc" and here is La  44 Corne, my lord, "and Saint Luc" includes several  45 "Sauvages des Pays d'En Haut" or "Indians of the Upper  4 6 Country".  Among them are various "Ayoas de la Mer  47 d'Ouest".  That is to say from that post, as well as 23931  Submissions by Mr. Rush  1 "Renards du Mississippi" from the Mississippi.  2 The officers in charge of these Indian forces were  3 very familiar with the western tribes.  La Corne and  4 his brother Saint Luc had both been attached to the  5 posts of the Mer de l'ouest in the period '52, '55, La  6 Corne having replaced Saint Pierre as commandant.  It  7 was La Corne who had built a post in 1753 or 1754 near  8 the forks of the Saskatchewan, and serving under them  9 in Montcalm's Army was the same Chevalier De  10 Niverville who had established a Fort La Jonquiere  11 near the Rocky Mountains.  12 On the 29th of June, 1759, six or seven hundred  13 Indians from the Mississippi arrived to join the  14 friend of forces.  The Chevalier Pouchot, commander at  15 Niagara, reported that Messieurs de la Verandrye and  16 Langlade were coming down as well with twelve hundred  17 Indians of the Cristinaux, Sioux, Sakis,  18 Folles-Avoines, Sauteur and Reynard tribes.  19 The Cree were one of the principal tribes trading  20 at the posts of the Western Sea.  The Sioux lived  21 about and to the west of the headwaters of the  22 Mississippi River.  23 The French were in direct contact and trading  24 under arms with many Indian Nations to the west and  25 northwest of the Mississippi.  And this shows, we say,  26 the extent of their influence in the west.  27 Now, moving to the Treaty of Paris and what  28 Britain acquired.  Britain acquired by the Treaty of  29 Paris the unlimited west.  Britain knew that the  30 boundaries of New France or Canada included the  31 unlimited west, which had been the subject of the  32 French fur trade.  Thus the whole of Canada was ceded  33 by the Treaty of Paris of 1763.  Britain's primary  34 concern throughout the peace negotiations was the  35 exact boundary between Canada and Louisiana, the  36 latter colony having remained in French hands after  37 the conquest.  38 Britain knew that New France or Canada include the  39 unlimited west, which had been the subject of the  40 French fur trade.  41 Now, My Lord, after the fall of Montreal Amherst  42 took measures to assert British control over the  43 interior, and what is there included is his efforts of  44 sending Major Rogers with 200 rangers to the posts of  45 Forts Detroit, Miamis, Saint Joseph and  46 Michilimakinak.  47 MR. GOLDIE:  On the frontiers of Canada. 23932  Submissions by Mr. Rush  1 MR. RUSH:  On the frontiers of Canada with letters from Monsieur  2 de Vaudreuil to the commanding officer to give up  3 those posts according to the capitulation.  4 Amherst was using the language contained in  5 Articles Hid and XXXIX of the capitulation at  6 Montreal on September 8, 1760, drafted by Vaudreuil  7 and his officers.  And I there set out those articles,  8 and I draw your attention in particular, my lord, to  9 the second of those two.  10  11 "None of the Canadians, Acadians or French, who  12 are now in Canada, and on the frontiers of the  13 colony, on the side of Acadia, Detroit,  14 Michilimaquinac and other places and posts of  15 the countries above."  16  17 Is the relevant language.  18  19 "The married and unmarried soldiers."  20  21 And so on.  22 The posts specifically mentioned by Amherst are  23 shown on Nicholas Bellin's 1755 map, 1027-29 A.  Fort  24 Detroit is at the site of present day Detroit,  25 Michigan.  Miamis is on the river of that name  26 southwest of Lake Erie.  Saint Joseph is on the  27 southeast side of the Lake Michigan, and  28 Michilimackinac is on the eastern side of the straits  29 connecting Lakes Huron and Michigan.  30 But Amherst also uses the words "etcetera" to cover  31 other interior portions.  And Dr. Greenwood agreed  32 that the phrase "other places and posts of the  33 countries above", as used in the capitulation, would  34 have included the posts of the Mer de l'ouest or  35 Western Sea.  36 It is probable, therefore, that Vaudreuil's  37 orders, as conveyed through Amherst's messenger, Major  38 Rogers, encompassed the abandonment of these western  39 posts as well.  40 Indeed it could be suggested that, because of the  41 officers who had occupied the west, La Verendrye's  42 son, Louie-Joseph, as well as Sieurs de la Corne and  43 Saint-Luc, and the Chevalier de Niverville were  44 already down fighting the English, the posts of the  45 Western Sea had long since been abandoned and couldn't  46 have been contemplated by the capitulation.  47 But there can be no question that Vaudreuil, when 23933  Submissions by Mr. Rush  1 drafting the articles of capitulation, knew that  2 French troops remained at the post of the Western Sea.  3 In 1760, he had reappointed Lieutenant Dejordy  4 Villebon, in charge since 1758, as commandant until  5 1763 or '62 or '63.  Dejordy had actually left the  6 west with a load of furs at the beginning of the  7 summer of 1760, but didn't reach Montreal until late  8 September or early October, after Montreal had already  9 fallen.  10 Now, Vaudreuil and his officers in our submission  11 clearly had Dejordy in mind when they drafted Article  12 XXXVII.  And I direct you to the portion that's  13 underlined there.  14  15 "They shall also have the furs which are in the  16 posts above, and which belong to them and may  17 be on the way to Montreal."  18  19 And for this purpose they shall have leave to send  20 this year or the next canoes fitted out to fetch such  21 of the said furs as shall have remained in those  22 posts.  23 Now, support for our argument that the last part  24 of Article XXXVI also contemplated the western posts  25 comes from reports by English traders on Hudson's Bay  26 that the French were still occupying Pasquia on the  27 Saskatchewan River as late as 1761.  28 I am going to -- I have the reference, my lord, to  29 this treatise.  It's in French, but I also have an  30 English reference, and I'll provide that for you.  31 MR. GOLDIE:  Has it been submitted before?  32 MR. RUSH:  It has been referred to before.  It has not been  33 submitted before.  34 MR. GOLDIE:  I take it, my lord, it will fall under the same  35 category as the one that we are about to debate at  3 6 some time.  37 THE COURT:  Yes.  38 MR. RUSH:  Now, my lord, in our submission it would not have  39 been necessary for General Amherst's subordinate,  40 Major Rogers, to physically occupy the post of the  41 Western Sea.  It was sufficient to control the upper  42 Great Lakes, particularly Lake Superior.  43 Michilimackinac, to which Rogers had originally been  44 sent, was the entrepot of the northern French posts,  45 including those of the Mer de l'ouest.  And canoe  46 parties reported in at this post on their way to and  47 from Montreal via the Grand (Ottawa) River. 23934  Submissions by Mr. Rush  1 Now, it -- the argument goes on to set out the  2 French posts on Lake Superior, which included military  3 detachments.  And I'll just ask you to go over the top  4 of 133, my lord.  About --  5 THE COURT: Would you pick a convenient time to adjourn, Mr. --  6 MR. RUSH:  Yes, my lord.  If I may continue for a moment.  7 THE COURT:  Certainly.  8 MR. RUSH:  About 15 leagues or some 40 miles from Kaministikwia  9 was the grand portage which Dr. Greenwood agreed was  10 the start of the inland water route leading to the  11 posts of the Western Sea.  And Your Lordship will  12 remember that during this evidence we endeavoured with  13 Dr. Greenwood's assistance to determine that grand  14 portage was at the westerly end but on the north shore  15 of Lake Superior, which was the starting point for the  16 commencement of the fur trade on the river and lake  17 system inland towards Lake Winnipeg.  18 The primacy in the French fur -- the French fur  19 trade for Michilimakinac is there referred to by  20 Thomas Gage's letter, and I won't direct your  21 attention to any of the passages there, but I ask you  22 to take that into account, my lord.  Gage there was  23 replying to a dispatch from the Secretary of State,  24 Egremont, of December 13, 1761, requiring Amherst to  25 furnish information about Britain's recent  26 acquisitions.  27 I would ask you, my lord, to go over to 136.  I  28 would just like to finish this section, if I may.  29 THE COURT:  Certainly.  30 MR. RUSH:  The Board of Trade reported to Egremont on the 8th of  31 June, 1763, and they noted that they had received His  32 Majesty's commands to take into consideration those  33 articles of the late definitive Treaty of Peace which  34 relates to the cessions made by France and Spain, and  35 to report our opinion by what regulations the most  36 extensive advantages may be derived from them, and  37 those advantages rendered most permanent and secure to  38 Your Majesty's trading subjects.  The board's report  39 establishes conclusively that France's claims to the  40 unlimited west had passed to Britain at the Treaty of  41 Paris.  Which you will remember was on February 10th.  42 And I just direct your attention, my lord, to the  43 passage.  44  45 "The next obvious benefit acquired by the  46 cessions made to Your Majesty is the fur and  47 skin trade of all the Indians in North 23935  Submissions by Mr. Rush  1 America."  2  3 And I ask you to go down further in that passage  4 and to take into account the underscored portion.  5  6 "All the Indians upon that immense continent"  7  8 And finally:  9  10 "Another obvious advantage of the cession, will  11 be supplying to all the Indian tribes upon the  12 Continent of North America with European  13 commodities immediately through the hands of  14 English traders."  15  16 Certainly at that time they considered native  17 people to be consumers of European commodities in the  18 northwest.  19  20 "Canada as possessed and claimed by the French  21 consisted of an immense tract of country  22 including as well the whole lands to the  23 westward indefinitely which was the subject of  24 their Indian trade ..."  25  26 Now, what France claimed prior to the conquest and  27 what the British succeeded to in the Treaty of Paris  28 were territories of North America which extended to  29 the unlimited west.  The French knew of the Rockies,  30 they knew that there were Indians who lived to the  31 west of the Rockies.  They traded extensively with the  32 Indians in the west and northwest I would add, and  33 they knew of the Pacific Coast.  Britain got the whole  34 lands to the westward indefinitely, which was the  35 subject of their -- that is to say the French-Indian  36 fur trade.  This description was of an unbounded and  37 unlimited territory.  38 And I can pause there, and I will go onto the  39 definition of the boundary beteen Louisiana and Canada  40 after lunch.  41 THE COURT:  Thank you.  2:00 o'clock.  42 THE REGISTRAR:  Order in court.  This court stands adjourned  43 until 2:00 o'clock.  44  45  46  47 23936  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 23937  Submissions by Mr. Rush  1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  By the miracles of electronic searching I found that  5 the mountains that Dr. Farley said Mr. la Verandrye  6 reached in 1754 were the Big Horn Mountains, which I  7 believe are in North Dakota, but I'm not sure of that.  8 I have a copy for counsel.  9 MS. FENLON:  My lord, I think Dr. Farley's evidence was it was  10 Wyoming.  11 THE COURT:  Wyoming was it.  Well, that's close enough.  12 MS. FENLON:  Thank you, my lord.  13 MR. RUSH:  Yes.  Thank you, my lord.  14 THE COURT:  You have a copy of that somewhere already?  15 MR. RUSH:  Yes, I do.  I do, but it would have taken me a little  16 longer to find the source, my lord.  I note simply  17 that the context is somewhat different from the  18 context that I was urging upon your lordship.  And he  19 was dealing with an area, as I thought, in the  20 northern United States.  21 THE COURT:  Yes.  22 MR. RUSH:  Now, my lord, I had left off before the luncheon  23 break with the proposition that Britain had received  24 "the whole of the lands to the westward indefinitely  25 which was the subject of their Indian (fur) trade...",  26 and that this description was of an unbounded and  27 unlimited territory.  And I was about to go into the  28 defining of the boundary between Louisiana and Canada.  29 Britain got what France had and claimed, but  30 Britain's major uncertainty throughout the peace  31 negotiations was not with the boundary of Canada  32 north-west, north-west of the Great Lakes, but rather  33 the exact nature of the boundary between New France  34 and Louisiana.  Vaudreuil's capitulaton at Montreal on  35 8 September, 1760, applied only to Canada.  And Dr.  36 Murray Greenwood agreed that France and Britain  37 remained technically at war.  38 As at 1760, the French still controlled Louisiana,  39 including a number of posts on the upper Mississippi  4 0 River.  And Dr. Greenwood again confirmed that this  41 would have included Fort de Chartres above the  42 present-day St. Louis, Missouri.  Fort de Chartres was  43 in what the French call the Illinois country, the area  44 around the junction of the Illinois and Mississippi  45 Rivers, and its commandant and garrison were furnished  46 by the Louisiana government at New Orleans.  47 Now, I want to turn to a matter that was referred 2393?  Submissions by Mr. Rush  1 to in Dr. Greenwood's evidence, namely, the  2 Vaudreuil-Haldimand map, and we call it the  3 Vaudreuil-Haldimand-Amherst map.  4 Now, we say, my lord, that it's clear from the  5 historical record that at the time of the capitulation  6 neither General Amherst nor his subordinate officers  7 knew the northern and northeastern boundaries of the  8 Illinois country, and thus, where Canada ended and  9 where Louisiana began.  10 Now, what follows is a series of events between  11 Vaudreuil and Haldimand and Amherst regarding the map  12 drawn to show the extent of the French possessions at  13 the time of the Treaty of Paris.  14 Shortly after entering Montreal, Colonel Haldimand  15 went to Vaudreuil and asked if he had any "plans,  16 memoirs or informative maps concerning Canada" which  17 Haldimand might take to show Amherst.  Vaudreuil  18 claimed to have lost all such documents at Quebec.  19 However, a few days later when Haldimand approached  20 Vaudreuil again, the latter produced "a large map of  21 North America drawn by hand and folded into an atlas  22 cover".  23 Now, what I'd like to emphasize for the purpose of  24 this point, my lord, is the fact that it was a large  25 map of North America.  2 6 This map Haldimand took with him and on the  27 morning of the day Vaudreuil was leaving for France,  28 he returned to the French governor and asked him, with  29 reference to the map, "to show me the boundaries of  30 Canada":  31  32 "He seemed much surprised. As he made no reply,  33 I put my finger on the Illinois River, saying  34 'here is the Illinois'.  He then replied that  35 the Illinois had been disputed between the two  36 governors, but it had been decided to be a  37 dependency of Louisiana."  38  39 Vaudreuil then, according to Haldimand, agreed to  40 a boundary between Louisiana and Canada on the north  41 and northeast.  42  43 "Upon that. . . "  44  45 And I here quote from 1168-6.  46  47 "...taking a pencil from my pocket, and resting 23939  Submissions by Mr. Rush  1 on my elbows on the map, with M. de Vaudreuil  2 standing up beside me, I asked him, showing him  3 the northern part of the Mississippi, if the  4 line went thither.  On his answering yes, I  5 marked points from the source of the Illinois,  6 ascending the Mississippi, and having again  7 asked him if I was marking it correctly he, M.  8 Le Marquis de Vaudreuil, then having his eyes  9 fixed on the map answered in these very words  10 'Take all the north, take all the north.' Then  11 I carried the line to Red Lake which seemed to  12 me the most likely limit, without the faintest  13 objection from him.  14 Then, returning to the other side of the  15 Illinois, and not imagining that the Ohio  16 itself could be disputed, I said to him 'Where  17 we go doubtless by the mouth of the Wabash...'"  18  19    THE COURT: I'm sorry, "Here we go".  2 0    MR. RUSH:  21  22 "'Here we go doubtless by the mouth of the  23 Wabash'; and placing my pencil at the junction  24 of the Ohio and Mississippi, I drew a line  25 ascending that first river and the Wabash,  26 joining it to the points I have begun to mark  27 as the source of the Illinois.  28 Thus I formed a line as far as Red Lake.  29 M. de Vaudreuil continued to stand beside me,  30 looking at the map, without making any  31 objection; the line drawn by these various  32 contours could not be done in an instant, and  33 would nevertheless have given him the time to  34 do so."  35  36 Now, carrying down to the bottom of the page, my  37 lord.  In fact, as Amherst acknowledged to Haldimand  38 in November of 1762, the line had not been drawn by  39 Vaudreuil.  Amherst had simply copied the portion of  4 0 the map showing the limits between Canada and  41 Louisiana.  And I quote:  42  43 "When I made a report of Canada to the Secretary  44 of State, I transmitted a copy of the Part of  45 the Map, where the limits between Canada and  46 Louisiana were marked, which you delivered to  47 me, and which I acquainted the Secretary of 23940  Submissions by Mr. Rush  1 State were done by Monsieur de Vaudreuil,  2 whether by him or done in his presence by his  3 direction, comes to the same thing."  4  5 Further proof that the British were only  6 interested in the boundary between Canada and  7 Louisiana comes from the way Amherst and Haldimand  8 interpreted the map.  9 Colonel Haldimand was likely chosen to conduct the  10 interview with Vaudreuil because he was a  11 French-speaking Swiss.  He was one of a number of  12 Protestant Swiss and German officers who had joined  13 the British army in 1756.  The letter in which he  14 describes his meeting with the French governor was  15 written in French.  16 The original map which Vaudreuil give to Haldimand  17 was a "large map of North America drawn by hand", and  18 its French rendering is there included in our text.  19 Haldimand recollected that he had seen it in print.  2 0 Given Haldimand's own European background, and the  21 fact that the map was in the possession of the  22 governor of New France, there can be no doubt that the  23 map was French.  The fact that the original was a  24 French map is confirmed by the copy which Amherst had  25 made of a portion of it.  Dr. Greenwood agreed that  26 all the rivers and place-names which appear on the  27 copy are in French.  28 Now, we say, my lord, that the likeliest candidate  29 for the original French map in question is Nicolas  30 Bellin's "Carte de l'Amerique Septentrionale" printed  31 in 1755.  Dr. Farley testified Bellin was the most  32 influential French cartographer of his day and  33 occupied a privileged position as Ingenieur de la  34 Marine et du Depot des Cartes et Plans.  It would not  35 have been surprising for a government official like  36 Vaudreuil to possess a manuscript map from the French  37 department of the marine.  Dr. Farley placed one such  38 manuscript map by Bellin in evidence, a 1752 map  39 showing the Great Lakes.  40 Now, we say there are enough similarities between  41 Bellin's 1755 map, even in its printed rather than  42 manuscript form, and the portion of the map which  43 Amherst copied and sent to the secretary of state, to  44 suggest that the latter had been copied from a Bellin  45 manuscript.  The run of the Mississippi River and the  46 southern portion of Lake Superior are similar.  47 Now, Haldimand stated that he had originally found 23941  Submissions by Mr. Rush  1 "nothing enlightening" in this map.  Though Bellin's  2 1755 map shows the posts of the Mer de 1'Ouest and  3 much of the western interior of North America, it does  4 not mark any definite boundary between New France or  5 Canada and Louisiana.  6 And if you just go back, my lord, to Exhibit 1027,  7 1029-A, that point I think is demonstrated by the blue  8 outlining of the French possessions as depicted by  9 Bellin in his map of 1755.  And you can see where  10 Louisiana is and the outline of the Mississippi so  11 that the boundary is far to the west, closer to the  12 mountains, as he perceived it.  13 Now, my lord, Amherst copied, we say, only the  14 portion of the original map which showed the boundary  15 dividing Canada from Louisiana.  And that's a  16 significant point.  A red line is drawn from the  17 junction of the Ohio and the Mississippi, up the Ohio  18 and Wabash Rivers in a north-easterly direction to a  19 point south of Lake Michigan which represents the  20 headwaters of the Illinois River.  The line then runs  21 northward to the west of Lake Michigan and east of and  22 parallel to the Mississippi, before crossing below  23 Lake Superior in a westerly direction to Lac Rouge or  24 Red Lake.  And this corresponds to the verbal  25 description of the line given by Colonel Haldimand.  26 And that's contained in the exhibit reference that is  27 there mentioned.  28 Dr. Greenwood agreed in his cross-examination on  29 this small map or sketch Amherst did not mark most of  30 the interior French posts, such as Michilimackinac,  31 Detroit, St. Joseph's, Miami, Le Boeuf or Duquesne.  32 Now, it wasn't necessary, in our submission, to  33 mark the upper posts or the posts in the Ohio Valley  34 because these now clearly belonged to Britain by  35 virtue of the conquest of Canada.  And Vaudreuil had  36 already given orders to the commanders of the upper  37 posts to capitulate, carried inland by Major Robert  38 Rogers on Amherst's behalf, and the Ohio posts had  39 been captured or abandoned.  40 Now, Amherst did mark various rivers and places  41 above the junction of the Ohio and the Mississippi and  42 within the red line, such as the Wabash River and the  43 "Quyiatinons" Fort de Chartres and the "Casaquias" on  44 the east side of the Mississippi.  The latter three  45 were all in the Illinois country.  46 Now, my lord, it's significant that the only  47 interior French forts within Canada which Amherst 23942  Submissions by Mr. Rush  1 marked on the small map were Chagouamigon.  2 THE COURT:  You said Amherst.  I think you met Haldimand, did  3 you?  4 MR. RUSH:  No, my lord, I think Amherst.  5 THE COURT:  You're not talking now about the Vaudreuil-Haldimand  6 discussion?  7 MR. RUSH:  Oh, yes, I am, but you see, my lord, Amherst becomes  8 involved in this because it was Amherst who copied --  9 THE COURT:  Oh, all right.  Thank you.  10 MR. RUSH:  — the map copied by Haldimand.  11 THE COURT:  Thank you.  12 MR. RUSH:  Now, it is significant that the only interior French  13 forts within Canada which Amherst marked on the small  14 map were Chagouamigon on the south side of Lake  15 Superior and La Baye, now Green Bay, on the west side  16 of Lake Michigan.  These were the access points  17 through which French traders from Canada passed to the  18 upper Mississippi River to trade with, among others,  19 the Sioux.  By marking La Baye and Chagouamigon,  20 Amherst was identifying them as the frontier posts  21 between Canada and Louisiana.  22 Now, my lord, it's also significant that Amherst  23 only copied the southern third of Lake Superior on the  24 small map.  Had he been concerned to delineate a  25 northwestern boundary of Canada, he would certainly  26 have included all of Lake Superior.  He would also  27 have marked the post of Kaministikwia on the  28 north-west side of the lake, as well as whichever of  29 the inland posts, such as Rainy Lake, Lake of the  30 Woods, or perhaps Lake Winnipeg, was to serve as the  31 north-western boundary.  32 The so-called Vaudreuil-Haldimand map only shows a  33 boundary to Canada on the south and south-west side of  34 Lake Superior as well as on the west and south-west  35 side of Lake Michigan.  The map shows no Canadian  36 boundary north or north-west of the upper lakes, nor  37 to the east and south-east.  This fact was  38 acknowledged by King George III in instructions  39 conveyed from Lord Egremont to Jeffery Amherst on  40 December 12, 1761.  41  42 "...I am further to signify to You the King's  43 Pleasure that you do use your utmost endeavour  44 to obtain the most exact Informations, with  45 regard to the Extent and Limits of Canada and  46 of all its Dependencies when under the French  47 Government, in order that the real Boundaries 23943  Submissions by Mr. Rush  1 of that most Important Country may be, whenever  2 it shall become necessary, ascertained on all  3 sides, with the utmost Clearness and Precision;  4 the little map You transmitted in your letter  5 of October 4th, 1760 with the Red line drawn by  6 the Marquis de Vaudreuil having only described  7 the Limits of Canada on the side of the Lakes."  8  9 Now, my lord, there was no north-west boundary  10 between Louisiana and Canada.  By December of 1761  11 Britain clearly knew that the Ohio Valley and the  12 upper Great Lakes were included in Canada.  British  13 negotiators were able to use the  14 Vaudreuil-Haldimand-Amherst map to thwart French  15 attempts during the peace negotiations to extend  16 Louisiana at Canada's expense.  17 Now, what follows, my lord, are the exchanges  18 between the French and the British in their  19 negotiations, and I'm not going to detail all of  20 these, but I simply wish to draw to your attention the  21 exchanges which occurred over the determination in  22 these negotiations of where exactly that Louisiana  23 boundary was to be located.  And I'll ask you if you  24 will please now move to 148, perhaps just at the  25 bottom of 147.  Stanley showed the supposed Vaudreuil  26 map to the Due de Choiseul at a conference in  27 September and the latter agreed to the "bounds of  28 therein stated".  Now, this would be the  29 boundary between Louisiana and Canada not only in the  30 Ohio Valley, but west and south-west of Lake Michigan  31 and south and south-west of Lake Superior.  This is  32 the line shown on the Vaudreuil map.  This boundary  33 was effectively accepted by the French in a Memorial  34 from Bussi to Pitt of 13 September, 1761.  35  36 "The King has declared in his first memorial,  37 and in his ultimatum, that he will cede and  38 guarantee to England the possession of Canada,  39 in the most ample manner; his Majesty persists  40 in that offer, and without discussing the line  41 of its limits marked in a map presented by Mr.  42 Stanley; as that line on which England rests  43 its demand, is without doubt the most extensive  44 bound which can be given to the cession, the  45 King is willing to accept it."  46  47 England, however, my lord, added the word 23944  Submissions by Mr. Rush  1 "dependencies" to the description of the proposed  2 French cession, and you'll note in the passage that  3 follows:  4  5 "As the court of England has added to the first  6 article of their answer to the entire and total  7 cession of Canada, as agreed between the two  8 Courts, the word dependencies..."  9  10 And then the passage carries on.  11 Now, although Pitt had referred to the Ohio Valley  12 as a dependance of Canada, it is clear that the  13 English Crown believed there were other dependencies  14 of Canada as well.  Thus, an official dispatch from  15 Egremont to Amherst on December 12, 1761 was intended  16 to secure answers to the question posed by the French  17 court:  18  19 "I am further to signify to You the King's  20 Pleasure that you do use Your utmost endeavours  21 to obtain the most exact Informations with  22 regard to the Extent and Limits of Canada, and  23 of all its Dependencies..."  24  25 Now, among the documents which the crown received  26 in answer to Egremont's dispatch was a report from  27 Major General Thomas Gage, military governor of  28 Montreal.  Gauge attached to his report a "List and  29 account of the trading posts in the Indian country".  30 The crown also received a report from James Murray,  31 military governor of Quebec, dated 6 June, 1762, and  32 Murray enclosed an extract of a letter giving some  33 account of the "Indian trade in the Upper Country".  34 Now, my lord, it's our submission that if His  35 Majesty did not already know that the claims of the  36 French had extended indefinitely westward, and we  37 believe he did, then these reports were determinative.  38 There was thus no north-western boundary between  39 Canada and Louisiana.  These reports were among the  40 papers considered by the Board of Trade in its June  41 8th, 1763, report to His Majesty on the "cessions made  42 by France and Spain" in the Treaty of Paris, 10  43 February, 1763.  And in that document the Board of  44 Trade stated:  45  46 "Canada as possessed and claimed by the French  47 consisted of an immense tract of land including 23945  Submissions by Mr. Rush  1 the whole lands to the westward indefinitely  2 which was the subject of their Indian trade."  3  4 Now, my lord, going to the question of the  5 north-west, under the heading Vaudreuil surrenders the  6 north-west, the crown, the British Crown, also learned  7 from General Gage's report of 20th March, 1762 that  8 the Marquis de Vaudreuil had misled both Colonel  9 Haldimand and General Amherst when he agreed that  10 Louisiana's boundary with Canada had run to the  11 westward of Lake Michigan and to the south of Lake  12 Superior.  Gage reported to General Amherst that  13 Louisiana had never extended up the Mississippi past  14 the junction with the Illinois.  And the passage for  15 that follows there.  16 The Marquis de Vaudreuil was proud of the fact  17 that he had enlarged Louisiana at Canada's expense.  18 As he informed the Due de Choiseul in September of  19 1761, he had purposely misled the officer, Haldimand,  20 whom Amherst had sent to ask for informatory maps.  21 And that's set out there following.  22 Although he'd been forced to surrender, Vaudreuil  23 was clearly trying to minimize the amount of territory  24 to be ceded to Britain.  And this was because  25 Vaudreuil was expecting a peace settlement at any  26 time.  I ask you to look at the underlined portion  27 there, my lord.  28  29 "The Minister therein acquainted him...that the  30 French King depended on his defending the  31 Country, and he might assure himself there  32 would be a peace in the beginning of August."  33  34 Now, Vaudreuil certainly ceded the upper Great  35 Lakes.  According to Colonel Haldimand when he  36 proposed to demarcate the boundary between Canada and  37 Louisiana with a westerly line joining the headwaters  38 of the Illinois with the upper Mississippi, running  39 below Lake Superior, Vaudreuil told him, and these  40 words I've already cited "Take all the north, take all  41 the north."  Now, by "the north" Vaudreuil also meant  42 the north-west.  The posts of the western sea and  43 their dependencies were included among the French  44 "Postes du Nord" or northern posts.  45 Now, the sole economic benefit of the north-west,  46 indeed, of all the interior country, was the fur  47 trade.  But the French trade route to the northern 23946  Submissions by Mr. Rush  1 posts began at Montreal.  And it was the government of  2 Montreal which had been responsible for the sale of  3 the posts in the upper or Indian country.  Thus,  4 because the British had already captured the city, it  5 would have been pointless for Vaudreuil to hold on to  6 the north-western interior.  However, we say it made  7 perfect sense for Vaudreuil to attempt to extend  8 Louisiana's boundary to the north and northeast to  9 take in those Indian tribes who lived about the upper  10 Mississippi, as well as between the Mississippi and  11 the upper lakes.  The trade with those tribes,  12 formerly conducted from La Baye and Chagouamigon, had  13 been worth 20,000 and 16,000 livres respectively in  14 licence-fees to the French Crown.  And then I go on  15 and explain the value of the trade to the French.  16 In the next paragraph, my lord, it remained a goal  17 of diplomacy during the peace negotiations to retain  18 as much of the fur trade as possible.  In their  19 memorial of 1761, September 13, the French insisted  20 that English traders be banned from crossing either  21 the eastern or northern side of the line marked on the  22 Vaudreuil-Haldimand map, which separated the  23 Mississippi from the upper lakes.  By insisting as  24 well that the Indians would be free to trade on either  25 side of the line, the French were obviously hoping to  26 continue attracting tribes thenceforward living in  27 British territory.  And I ask you to make reference to  28 the citation there.  29 By the time peace negotiations were taken up again  30 in 1762, the British Crown had learned from General  31 Gage that the territory north and east of the junction  32 of the Illinois and Mississippi River, as shown on the  33 Vaudreuil-Haldimand map, had never been part of  34 Louisiana.  British negotiators therefore began to  35 insist that the Mississippi itself from its source to  36 its mouth be the international frontier on the west  37 and south-west.  And this boundary eventually was  38 embodied in the Treaty of Paris.  39 Now, my lord, I wanted to refer you briefly to the  40 map.  Is that the Vaudreuil map?  41 THE REGISTRAR: Yes, tab 206.  42 MR. RUSH:  Now, my lord, I simply wish to draw your attention on  43 this map to the place -- to what is shown of Lake  44 Superior, may I say what little is shown of Lake  45 Superior and, if you will, the limited geographical  46 reach of the map, thus I think illustrating the point  47 that I've been submitting to you on, that this was 23947  Submissions by Mr. Rush  1 taken as a segment from a much larger map showing the  2 reach of North America and most likely the reach to  3 the west and north-west of Lake Superior.  4 THE COURT:  Well, something that's been crossing my mind that  5 I'd be grateful for your views, Mr. Rush, is whether  6 Bellin's map might not be read as, assuming that the  7 blue line would extend out to the coast, the area  8 north of it being recognized as Hudson Bay territory?  9 MR. RUSH:  The area north of the blue line, but not depicted  10 with a yellow line, is that --  11 THE COURT:  Well, if that's so, that would assume that the  12 Hudson Bay at that time was thought to have no  13 territories west of what looks like on this map a very  14 short distance west of Hudson's Bay itself.  And I  15 wonder, if the French didn't concede that, why they  16 would have that northern blue line at all, if it  17 didn't mark the southern extremity of the Hudson's Bay  18 country.  19 MR. RUSH:  I think not, my lord.  I don't think that this is a  20 concession to the Hudson's Bay Company, but rather a  21 depiction of the reach of the then possessions of the  22 French.  I think it's interesting to note, if you see  23 on the map, that in fact what is the Riviere Blanche,  24 or the Saskatchewan River, the line proceeds out  25 the -- to what appears to be the north-west.  And I  26 think this was Bellin's perspective of the outward  27 expanding reach of the French influence as at that  28 time.  And I don't think it can be said that he was  29 attempting to define the southern limit.  I think if  30 he were he would have placed the yellow -- a yellow  31 line across the northern part of the blue.  Now, maybe  32 Bellin was hedging his bets on that one, but the point  33 I was submitting to you on, that the blue line very  34 clearly demonstrated the reach of the French influence  35 in the north and north-west, north of Lake Bourbon and  36 Lake Winnipegosus.  37 THE COURT:  All right.  Thank you.  38 MR. RUSH:  On 154, my lord, I was about to turn to the British  39 cartographers mapping of Canada's unlimited west.  The  40 evidence of contemporary maps supports the conclusion  41 that Britain acquired France's north-western claims by  42 the Treaty of Paris.  Influential British  43 cartographers consistently acknowledged, not only that  44 North America extended much farther to the west than  45 they were in the habit of showing on their maps, but  46 that French claims had also extended indefinitely  47 westward.  One such cartographer was John Mitchell, 2394?  Submissions by Mr. Rush  1 whose 1755 map of North America, according to the  2 defendant's witness Dr. Farley, was the most  3 influential British map of its day.  King George III  4 had a copy of Mitchell's map in his possession.  5 Though the Mitchell map generally ignores that  6 part of the continent of 49 degrees latitude and west  7 of Lake of the Woods, it contains a number of  8 inscriptions which demonstrate Mitchell's knowledge of  9 the western extent of North America.  Near the  10 headwaters of the Mississippi River Mitchell inscribes  11 the words "North America extends nigh as far Westward  12 as the it does to the eastward by all accounts".  At  13 the left-hand margin Mitchell repeats what he has  14 learned from French cartographers, namely, that beyond  15 the bounds of his map Canada includes an extensive  16 area to the west and north-west.  And there, my lord,  17 contains his inscription that is found on the map.  18 And I just draw to your lordship's attention the  19 portion that's underlined in this passage.  20  21 "Canada again is larger than either of these.  22 If we extend these two colonies to the  23 Alleghany Mountains, as we see done in the  24 French maps, they include 9/10ths of all the  25 countries here laid down."  26  27 Now, Dr. Farley agreed in his evidence that  28 Mitchell believed Canada covered a much larger area to  29 the west than he in fact indicated within the bounds  30 of his map.  In his 1757 book dealing with the contest  31 between France and England in North America, Mitchell  32 repeated what he had entered on his own map "in the  33 French maps here quoted and many others, the claims of  34 France in North America extend from the Appalachian to  35 the south seas".  36 Mitchell's opinion was shared by Thomas Jefferys,  37 who had an official appointment as geographer to the  38 king as well.  In his own book entitled "A Description  39 of New France" published in 1760, Jefferys summarizes  40 English conclusions about the boundaries of Canada.  41  42 "Canada, according to the English account, is  43 bounded on the north by the high lands which  44 separate it from the country about Hudson's  45 Bay, Labrador or New Britain, and the country  46 of the Eskimeaux and the Christeneaux; on the  47 east by the River St. Lawrence and on the south 23949  Submissions by Mr. Rush  1 by the Outawais River, the country of the Six  2 Nations and Louisiana, its limits towards the  3 west extending over countries and nations  4 hitherto undiscovered."  5  6 Jefferys based his interpretation of French  7 boundaries both on the actual exploration of the La  8 Verendryes and their successors, who had established  9 the posts of the western sea, as well as on the  10 theories of French geographers like Delisle and  11 Buache.  And I ask you to take the next passage into  12 account, in particular what he ways at the end in  13 reference to:  14  15 "The River Poskoyax is made by De Lisle and  16 Buache to rise within twenty-five leagues of  17 their west sea, which they say communicates  18 with the Pacific Ocean.  All these forts are  19 under the Governor of Canada."  20  21 Now, British knowledge of the north-west coast.  22 The maps and writings of foreign cartographers like  23 Bellin, Muller, De Lisle and Buache, no matter how  24 absurd some of it may now appear, profoundly  25 influenced English thinking about the configuration of  26 north-western North America.  Particularly during the  27 period 1760 to '63 which culminated in the drafting of  28 the Proclamation, British policy-makers up to and  29 including King George III himself became convinced  30 that there was a north-west coast to America which  31 continued as far as the Bering Strait.  What remained  32 in dispute, my lord, was the exact nature of the  33 intervening terrain between the interior parts of the  34 continent and that north-west coast.  35 Dr. Farley testified that for all the North  36 American colonists in the 17th and 18th centuries,  37 English as well as French, it was a widely held  38 concept that there was an inland Sea of the West, and  39 if one got to the Sea of the West, one might find a  40 river which would drain off to the Mer du Sud or  41 Pacific Ocean.  Dr. Farley also testified that it was  42 the English who were particularly interested in  43 finding a northern water passage to Japan and China by  44 way of Hudson's Bay.  45 And then what follows, my lord, is a summary, if  46 you will, of the British cartographic experience, and  47 I refer to the Briggs map of 1625, and I'll ask you to 23950  Submissions by Mr. Rush  1 go over to 159.  2 Dr. Farley also agreed that in the first half of  3 the 18th century the most influential proponent of the  4 existence of a north-west passage on the west coast of  5 Hudson Bay was Arthur Dobbs, a wealthy Ulster  6 landowner and member of the Irish House of Commons.  7 Now, what follows here, my lord, and I don't intend to  8 review it, is the efforts that Dobbs undertook both to  9 lobby and to bring about an attempt to mount an  10 expedition to find the north-west passage which he  11 believed would take him from Hudson's Bay to the  12 Pacific Ocean.  And the history of that is there set  13 out from 159 over to 162.  And that brings us to Henry  14 Ellis.  15 Henry Ellis, a compatriot of Dobbs at this period,  16 continued to be interested in the north-west passage.  17 Towards the end of 1749 it was rumoured that Ellis had  18 persuaded the Admiralty to send an expedition to the  19 north-west coast of America to search for the Pacific  20 entrance to the passage, but no action was taken on  21 his plan.  22 In 1750, my lord, Ellis was named governor of  23 Georgia, and he afterwards became governor of Nova  24 Scotia.  Ellis remained an influential policy advisor  25 to the Imperial government.  He is generally  26 acknowledged as the author of a policy paper which we  27 have re-called "Hints", several of which suggestions  28 were eventually to be incorporated in the Royal  29 Proclamation.  30 Now, if you go over to 163, my lord, in terms of  31 this period Dr. Farley accepted Professor Williams'  32 explanation in his treatise on the British search for  33 a north-west passage that the English had become  34 convinced that the north-west coast of America  35 extended, in some fashion, almost as far as Kamchatka.  3 6 And I quote:  37  38 "Nowhere was the controversy over the Fonte  39 discoveries followed with more interest than in  40 England, where gradual acceptance of the fact  41 that the north-west coast of America extended,  42 in some shape or fashion, almost as far as  43 Kamchatka, lent additional importance to the  44 vast inland sea and network of straits and  45 rivers shown on the maps of de l'Isle and  4 6 Buache."  47 23951  Submissions by Mr. Rush  1 Knowledge of the north-west coast of North America  2 was widespread in England in the 1850's.  3 MR. GOLDIE: 1750's.  4 MR. RUSH:  1750's. Thank you.  Those in government shared in  5 that knowledge. Their interest was, moreover, in  6 finding the way via the supposed north-west passage to  7 get there.  8 Now, I just want to turn, my lord, to the  9 cartography showing the north-west coast on 164.  10 Professor Williams in his treatise also established  11 that the maps and books of the French geographers  12 reached England soon after publication.  13 Advertisements in the newspapers of this period show  14 that London sellers of maps and prints normally  15 stocked both the standard and latest foreign maps.  16 And I make reference to an advertisement in the  17 London Daily Advertiser with regard to the Buache map  18 of 1752.  19 I take you down to the next paragraph, my lord. It  20 is likely that King George III had a copy of the 1753  21 version of Philippe Buache's map.  Elements of the De  22 Lisle and Buache maps were enthusiastically reproduced  23 by the most influential British cartographers.  An  24 exact reproduction of the De Lisle map of 1752  25 appeared in the Gentleman's Magazine of London in  26 1754. In 1758 the London magazine published an  27 "accurate chart of the World with the New Discoveries"  28 by Thomas Kitchin.  29 Moving to the next paragraph, in 1760, the  30 Gentleman's Magazine published a "Map of the Icy Sea  31 in which the several communications with the Land  32 Waters and other new Discoveries are exhibited" by  33 John Gibson.  Now, my lord, half-way through that  34 paragraph we state that the north-west coast as shown  35 on Gibson's map is continuous.  Just inland from the  36 coast is a large West Sea, and connected to the  37 south-east side of the West Sea is a river which  38 almost joins the furthest westerly extension of both  39 the Mississippi and Missouri Rivers.  This was  40 undoubtedly meant to represent the "river of the west"  41 which had appeared on many earlier French maps.  42 Now, on 166, my lord, not all cartographers  43 accepted the De Lisle-Buache maps.  In his own memoir  44 and map of 1758 the German-Russian cartographer Muller  45 rejected a system of inland seas and straits shown by  46 the two Frenchmen and censured their cartographic  47 absurdities.  Nonetheless, Muller believed in the 23952  Submissions by Mr. Rush  1 existence of a continuous north-west coast, and in his  2 memoir he pointed out that the Russian explorations  3 had diminished the chance of finding a passage through  4 Hudson's Bay because they seemed to show that the  5 American coast extended north-west as far as Bering  6 Strait.  Muller's outline of the north-west coast was  7 remarkably accurate for the period.  Indeed, Dr.  8 Farley described Muller's work as "inspired  9 conj ecture".  10 Now, I want to move to the Jefferys maps, my lord,  11 Jeffery being a royal geographer, showing the  12 north-west coast.  During the period leading up to the  13 Royal Proclamation of 1763, Muller's views about the  14 existence of a north-west coast enjoyed wide  15 circulation.  King George III, for example, had his  16 own copy of Muller's 1758 map of the Russian  17 discoveries.  Muller's memoir and map were also  18 translated into English and published by Thomas  19 Jefferys, geographer to King George III.  And I'd like  20 to pause here, my lord, and I would ask you to look at  21 Jefferys' map of 1761 which is 1154-17.  22 THE COURT:  Thank you.  23 MR. RUSH:  This map is entitled "A Map of the Discoveries made  24 by the Russians on the Northwest Coast of America".  25 And if you look on the right half of this map, my  26 lord, and orient yourself on a bit of an angle, you  27 will see that Jefferys depicts a fully continuous  28 north-west coast on the Pacific.  29 Dr. Farley agreed that not only the title, but  30 Jefferys' map itself portrays a north-west coast of  31 America.  He also agreed that the coast is virtually  32 continuous, except for the entrance to Juan de Fuca  33 strait and one or two other breaks which may be faults  34 in the copy.  Now, Dr. Farley testified that, while  35 Muller had left quite substantial portions of the  36 coast in dotted line, Jefferys filled in the coastline  37 to make it appear solid, and this is evident from the  38 Jefferys' map.  39 Now, you'll recall that Jefferys was taking  40 information and was informed by Muller's map itself.  41 On Jefferys' map there is also a solid line running  42 from Lake Winnipeg to the Pacific Coast of the  43 entrance discovered by Martin D'Aguilar and entitled  44 "River of the West".  4 5    THE COURT:  Yes.  46 MR. RUSH:  Muller had rendered the same river with a line of  47 dashes.  So you can see, my lord, and I think this was 23953  Submissions by Mr. Rush  1 evident in the examination of Dr. Farley, that that  2 river flowed from Lake Winnipeg on right through to  3 the Pacific, named River of the West.  4 Now, I'd like your lordship also to have reference  5 to the map of Jefferys at tab 18, 1154-18, which is  6 Jefferys' map of 1762.  And this is entitled "A map of  7 Canada and the north part of Louisiana", and by  8 reference to the west or the left-hand half of this  9 map, your lordship will see that it depicts a  10 continuous north-west coast.  In outline, the coast is  11 remarkably accurate, that is to say, accurate by  12 present-day standards.  In addition to noting the  13 Russian landing place at 55 degrees, 36 minutes,  14 Jefferys marks just in from the coast "Land which is  15 supposed to be the Fou-sang of the Chinese  16 geographers.  This is a reference to alleged voyages  17 to North America in the fifth century by Chinese  18 Buddhist monks.  Jefferys' use of the latter reference  19 shows the rapid dissemination of foreign knowledge.  20 An account of the Chinese voyage had only been  21 published the preceding year by the French sinologist.  22 Now, the depiction of the interior lakes and  23 rivers of what is now western Canada, Lake Bourbon,  24 Meadow Lake, the River Paskoyac, had clearly been  25 derived from French sources, as Jefferys himself  26 acknowledged in an earlier memoir.  And your lordship  27 can make reference to the Assiniboeules of the north,  28 the presence of Lake Bourbon, the location of Fort de  29 Fonte, and the white river that flows north and  30 westward from Lake Bourbon.  31 Now, my lord, I'll be referring to this again in a  32 moment and I'll just ask you if you would keep that  33 out.  34 Over to 169, it's our submission, my lord, that  35 Jefferys had taken at least some of his information  36 from a map published in 1754 by Phillip Buache and  37 entitled "Physical Map showing the Highest Lands in  38 the western part of Canada where you will see the New  39 Discoveries of the French officers to the west of Lake  40 Superior; with the rivers and lakes which Mr. Jeremie  41 spoke about in his relation of Hudson's Bay".  That  42 map included as an insert the Ochagach map to which  43 Jefferys refers.  And that's the map that he refers to  44 actually that I did not read to you in the paragraph  45 at the top of 169.  46 Though Jefferys did not depict a western sea on  47 either his '61 or '62 maps, he knew that the French 23954  Submissions by Mr. Rush  1 cartographers De Lisle and Buache were claiming that  2 such a body of water intervened between the River  3 Paskoyac and the Pacific Ocean.  This is expressly  4 stated in Jefferys' 1760 memoir on the geography of  5 North America where he states:  6  7 "The River Paskoyac is made by De Lisle and  8 Buache to rise within twenty-five leagues of  9 their west sea, which they say communicates  10                     with the Pacific Ocean."  11  12 By 1768, Jefferys had fully accepted the De  13 Lisle-Buache theories about the geography of  14 north-western North America, and this is shown by his  15 publication in that year of "A General map of the  16 discoveries of the Admiral de Fonte, Exhibiting the  17 great probability of a north-west passage."  18 Now, I'd like to turn now, my lord, to the Bowen  19 1763 map, and it's our submission that Bowen's 1763  20 map implies a north-west coast.  Even the most  21 skeptical of British cartographers of the period,  22 Emmanuel Bowen, accepted much of the De Lisle-Buache  23 theories about north-western geography in his 1763 map  24 of North America.  Like Jefferys, Bowen had an  25 official appointment as geographer to His Majesty,  26 King George III.  27 It is true that Bowen's 1763 map of North America  28 shows little above the 37th degree of latitude in  29 Spanish California and places an inset map of the  30 Hudson's Bay region over what is now western Canada.  31 In this respect, his map resembles John Mitchell's  32 1755 map of North America as a whole.  However, Dr.  33 Farley agreed that Bowen, like Mitchell, would have  34 been familiar with the works of Bellin, De Lisle,  35 Buache, and other French cartographers, and would have  36 known more about the geography of North America than  37 is shown on his map.  38 This is evidenced by Bowen's use of elements of  39 the supposed de Fonte voyages.  And you'll recall that  40 Dr. Farley's reference was drawn to the inset in the  41 upper left-hand or far north-west region depicted on  42 the Bowen map.  In the upper left-hand corner of the  43 inset on this map Bowen makes reference to the Lake du  44 Fonte, discovered 1640, and notes that it is "from 20  45 to 60 fathoms deep".  And Bowen also shows a strait  46 leading to a small Lake Ronquille on which there is  47 stated to be an Indian town. 23955  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  Now, Dr. Farley agreed that Bowen probably took  his information from a mixture of French sources and  translations of the de Fonte account.  It is our  submission that Bowen's depiction of these  geographical features is so similar to the De  Lisle-Buache map of 1752, that the latter map was  undoubtedly his primary source.  Thus, though Bowen  does not draw a north-western coast to North America,  his map, we say, necessarily implies such a coast,  namely, the one shown on the De Lisle-Buache map of  1752.  The latter map had also included the Western  Sea.  Now, it is hard to conceive, my lord, that Bowen  didn't know of the north-west coast of America, given  the advanced state of cartographic knowledge in 1763,  and his evident reliance on French mapping.  :  Is it not reasonable to assume as an alternative to  your proposition that he knew about it and discarded  it; did not accept it?  It is reasonable, my lord.  What I say is that he  couldn't not have known of the existence of the  coastline depicted by another geographer of the king  in 1762, a year earlier, Jefferys.  And there was  known too the entrance of Juan de Fuca as well as the  Chirikoff expeditions, hard information about the  existence of the Pacific Coast.  So one would have to  assume on your lordship's question that Bowen also  rejected that.  The submission we urge upon you is  that by including what has been called the spurious  geography of the de Fonte expedition --  :  Yes.  -- he must have known the existence of the way that  was depicted on the De Lisle-Buache map.  He must then  have known, in our submission, about the existence of  the information depicted by De Lisle and Bellin, by  Jeffreys on two occasions, and by Muller of the  information on the Pacific north-west coast.  And in  my submission, my lord, it's not so much a matter of  choosing to reject on the basis of reasoned  information that it is unreliable, but of course on  that theory why would he not reject de Fonte, but it's  that he ignored the information which was known to be  hard information of discoveries of the Pacific coast.  :  And what would you say about a further alternative  that he knew about it but regarded it as so unreliable  that it shouldn't be depicted on a map that he was  publishing? 23956  Submissions by Mr. Rush  1 MR. RUSH:  Well, I say to that that he simply is going against  2 the tide of other geographers, who were as reputable  3 and as knowledgeable about those discoveries as he  4 supposedly was.  5 THE COURT:  All right.  Thank you.  6 MR. RUSH:  But I think there's yet a further alternative —  7 THE COURT:  Yes.  8 MR. RUSH:  -- my lord, and that is that he chose for political  9 reasons to depict only a portion that was suitable for  10 the interests of certain elements or certain people at  11 that time, and that his map is really to be seen as  12 perhaps a choice of exclusion on the basis of  13 political choices.  Now, that wouldn't be so  14 surprising because I suspect that most maps are  15 dependent to large degree on political decision making  16 and not simply on questions of hard information.  But  17 what I do say, my lord --  18 MR. GOLDIE: My lord, excuse me, there is no evidence of what my  19 friend is stating, and in fact the evidence is  20 directly contrary to that.  21 MR. RUSH:  Well, I wasn't putting it forward as evidence, I was  22 putting it forward as a hypothetical alternative to  23 his lordship's questions about possibilities of the  2 4              map.  25 THE COURT:  All right.  26 MR. RUSH:  But what I do say, my lord, is when you place the  27 failure of Bowen to show anything about the north-west  28 coast against what Jefferys does show, in my  29 submission it suggests strongly that there was a  30 choice against including the hard information which  31 was known and should have been depicted.  32 THE COURT:  Bowen's map was what date, please?  33 MR. RUSH:  1763.  34 THE COURT:  Thank you.  35 MR. RUSH:  Now, my lord, I'm proceeding at the bottom of 171.  36 Though Dr. Farley disagreed that Bowen had copied the  37 De Lisle-Buache map, he affirmed that the possibility  38 of a north-west passage through the Lake de Fonte and  39 Lake Ronquille found its greatest audience in Britain.  40 Now, my lord, he wasn't so concerned about that  41 so-called spurious geography to reject that.  In our  42 submission, Bowen was obviously among those who  43 believed that proposition at least as at 1763.  44 Now, the 1763 Bowen map is an important map  45 because it was the annexed chart which the Board of  46 Trade sent to King George III to illustrate its report  47 of June the 8th, 1763.  And that's the evidence from 23957  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Mr. Morrison and Dr. Greenwood and of the editors of  the constitutional document series.  THE COURT:  The date of the Royal Proclamation was October 1763?  MR. RUSH:  Yes.  THE COURT:  Yes.  MR. RUSH:  Now, the many references in the Board of Trade's  report of 8 June, 1763 to "all of North America" show  that the Board was considering all of the British  possessions indicated on the Bowen map, which included  those both shown and implied by the insert in the top  left corner.  Furthermore, the Lords of Trade would  have been aware of the cartographic information about  the north-west coast depicted on the Jefferys map of  1762 and the maps of De Lisle and Buache in 1752 and  1754.  THE COURT:  Is it convenient to take an adjournment, Mr. Rush?  MR. RUSH:  Yes.  THE COURT:  All right.  THE REGISTRAR: Order in court. Court stands adjourned for a  short recess.  (PROCEEDINGS ADJOURNED FOR THE AFTERNOON RECESS)  (PROCEEDINGS RECONVENED PURSUANT TO RECESS)  THE REGISTRAR:  Order in court.  MR. RUSH:   My lord, I want to return to the question you posed  before the afternoon break, but with the relevant  documents in front of us which I think will be a  little more helpful to the court, and the passage that  is contained in the Board of Trade report of June the  8th, 1763 relevant to the Bowen map, and that's to be  found at 1026-24.  This is the report that you may  recall is the one that annexes the map or the chart  that is referred to, and it's annexed in this  language, and this bears on the point that I suggested  to your lordship about the potential political  nature --  Yes.  -- of the purpose of the map.  And it says this at  page 103:  "In order, however, that Your Majesty may judge  with the greater precision of the limits of  Canada as above described and also of those we  shall propose for Florida and of the country we  think right to be left as Indian territory, we  THE COURT  MR. RUSH: 2395?  Submissions by Mr. Rush  1 humbly beg leave to refer to the annexed chart  2 in which those limits are particularly  3 delineated, and of which Your Majesty will have  4 a clearer conception than can be conveyed by  5 descriptive words alone."  6  7 Now, the first thing to note from that, my lord,  8 is that the purpose of annexing the chart, and what I  9 say was the evident purpose of the chart, was to show,  10 first, the limits of Canada, that is to say Quebec;  11 and secondly, the proposed limits for Florida; and  12 thirdly, not using the word limits to refer and show  13 the country we think right to be left as Indian  14 territory.  15 Now, my lord, the word limits was not used to  16 define that country because, as we saw later or as  17 I've submitted to you, that country, the Indian  18 country, was defined negatively, that is to say, it  19 was everything else that wasn't otherwise defined.  20 Now, it's my submission, my lord, that when you  21 look at the Bowen map, what it shows are those limits  22 of Canada and Florida and what lies to the east of the  23 Appalachian Mountains, and it does not show any limits  24 to the Indian country.  The point here, however, that  25 I make is that the map, the Bowen map of 1763, was  26 confined to show an area for the purpose of the Board  27 of Trade in June 8th of 1763, namely, to demonstrate  28 the limits that it defined in this report.  29 Now, I gain further support for that, apart from  30 what I've already urged upon your lordship, that the  31 inset referred to speculative geography, which if it  32 was true that Bowen had rejected that speculative  33 geography he wouldn't have included that.  But my  34 other point I think is reinforced by this.  And your  35 lordship has the map, and I'm not sure if I have your  36 lordship's copy.  No, I don't.  It's 1149-12.  Excuse  37 me, it's the 1149-12, part II, my lord.  3 8    THE COURT:  Yes.  39 MR. RUSH:  And if you look at the upper left-hand corner, and if  40 you compare it once again to the Jefferys map of 1762,  41 which is 1154-18, and I had asked the registrar to  42 place that in front of you, and if not, I can provide  43 you with my copy.  44 THE COURT:  Well, I suppose we can say there's another  45 possibility that he just ran out of room.  46 MR. RUSH:  Perhaps that's the most pragmatic explanation, my  47 lord, but I think that there's another explanation. 23959  Submissions by Mr. Rush  1 THE COURT:  Yes.  2 MR. RUSH:  And if your lordship looks at Hudson's Bay or what is  3 said to be Hudson's Bay, my lord --  4 THE COURT:  In the inset?  5 MR. RUSH:  No, in the right-hand side.  6 THE COURT:  Oh, yes.  James Bay.  7 MR. RUSH:  You'll see, my lord, he shows the bottom portion at  8 James Bay and, in my submission, if he were to show  9 the whole of Hudson's Bay, firstly, he would not be  10 able to demonstrate, except on reliance of a spurious  11 geography of what is contained in Baffins or Bylot's  12 Bay in the inset, but he would show what was  13 demonstrated to be the contours of Hudson's Bay north  14 of James Bay that are depicted and, in my submission,  15 more clearly known in the Jefferys map of 1762.  And  16 if you just compare the two maps, my lord, you'll see  17 that if in fact he was intending to show the whole of  18 what was known, he would have shown a good deal more  19 than in fact what he did.  And, in my submission, what  20 he was endeavouring to show was precisely what was  21 suggested by the Lords of Trade in their report on  22 June 8th of 1763 and that was the motivation for the  2 3 map.  24 MR. GOLDIE:  My lord, is my friend saying that the map was  25 produced for the Board of Trade?  That's not the  2 6 evidence.  27 MR. RUSH:  It's not not the evidence either.  28 MR. GOLDIE:  Well, it's —  29 MR. RUSH:  The evidence is neutral on that point.  30 MR. GOLDIE:  I think the evidence is that the map preceded the  31 Board's report.  32 THE COURT:  Well, it was enclosed with it.  33 MR. RUSH:  It says annexed to it, my lord, and there's no  34 evidence as to whether the Board invited the  35 preparation or not.  36 THE COURT: All right.  37 MR. RUSH:  And the fact that it preceded means nothing in terms  38 of how it came into being.  But I say the only  39 conclusion you can draw from the language of the Board  40 of Trade in June 8th of 1763 is that the most likely  41 suggestion is that they asked Bowen to produce  42 something for them to demonstrate what they wanted to  43 demonstrate.  And at least as at that time there was  44 nothing in terms of the limits of the western country  45 or the Indian country to the west or north-west.  46 Now, my lord, coming back to page 172, the British  47 westward claims by Royal Charter.  In 1763, my lord, 23960  Submissions by Mr. Rush  1 Britain's claims to the west and north-west of what is  2 now Canada did not rest solely on the acquisition of  3 New France.  Britain had all along claimed these same  4 areas by virtue of Royal Charters issued in 1609 to  5 Virginia and in 1670 to the Hudson's Bay Company.  6 These competing British claims were alluded to by  7 the Board of Trade in their reply dated August 5, 1763  8 and addressed to His Majesty in a communication from  9 the secretary of state Lord Egremont July 14th, 1763.  10 Egremont had proposed including the countries recently  11 ceded by France in the commission to the governor of  12 Canada, that is, Quebec.  And the text states here:  13  14 "1st We are apprehensive that, should this  15 Country be annexed to the Government of Canada,  16 a Colour might be taken on some future  17 occasion, for supposing that Your Majesty's  18 Title to it had taken its Rise, singly from the  19 Cessions made by France, in the late Treaty,  20 whereas Your Majesty's Title to the Lakes and  21 circumjacent Territory as well as to the  22 Sovereignty over the Indian Tribes,  23 particularly of the Six Nations, rests on a  24 more solid and even a more equitable  25 Foundation; and perhaps nothing is more  26 necessary than that just Impressions on this  27 Subject should be carefully preserved in the  28 Minds of the Indians, whose Ideas might be  29 blended and confounded, if they should be  30 brought to consider themselves as under the  31 Government of Canada."  32  33 Now, I note that a similar point was made in the  34 London publication.  35 Dealing with the Virginia Charter, one such  36 colonial charter was the Second Charter of Virginia of  37 1609.  Under its terms, the colony was assigned  38 determinate limits, defined by coastal points located  39 200 miles north and south of Cape Comfort, and drawn  40 thence "up into the land throughout from Sea to Sea,  41 West and North-west".  According to their natural  42 meaning, the words of the Virginia Charter invoke a  43 southern boundary running due west and a northern one  44 running north-west.  If this northern limit is to be  45 extended to the Pacific as the Charter specifies, it  46 would take in the entire coast of British Columbia.  47 Virginia had all along considered that its claims 23961  Submissions by Mr. Rush  1 extended in a north-westerly, not just westerly,  2 direction.  In 1784, Virginia surrendered its claims  3 to lands in the new American north-west, south of Lake  4 Superior and west of Lake Michigan, to the United  5 States government.  It was not necessary for Virginia  6 to surrender its claims north of the 49th parallel  7 because those had passed to Britain at the Treaty of  8 Versailles which ended the Revolutionary War.  9 Now, during cross-examination Dr. Greenwood agreed  10 with your lordship that the colonial charters seemed  11 to claim territory that is overlapping by the Royal  12 Proclamation.  13 Now, my lord, with regard to the Hudson's Bay  14 Company Charter, this is on 175, the Hudson's Bay  15 Company territory also covered a broad, if indefinite,  16 stretch of northern and north-western North America.  17 And the Royal Charter of 1670 had granted the company  18 all the "Seas, Streightes Bayes Rivers Lakes Creekes  19 and Soundes in whatesoever Latitude they shall bee  20 that lye within the entrance of the Streightes  21 commonly called Hudson's Streightes together with all  22 the Lands Countryes and Territoryes upon the Coastes  23 and Confynes of the Seas Streightes Bayes Lakes Rivers  24 Creekes and Soundes aforesaid which are not now  25 actually possessed by any of our Subjectes or by the  26 Subjectes of any other Christian prince or state".  27 The territory so defined was to be "henceforth  28 reckoned and reputed as one of our Plantations or  29 Colonies in America called 'Rupert's Land'".  30 Now, though the boundary was indefinite, the  31 Hudson's Bay Company itself believed that its Charter  32 territory extended to the Pacific.  Responding to a  33 request from the Board of Trade that it provide a  34 description of its boundaries, the company replied on  35 3 October 1750 that its territory to the west of  36 Hudson's Bay extended "Westward to the utmost limits  37 of those Lands, but where or how those lands terminate  38 to the westward is also unknown, tho' probably it will  39 be found they terminate on the great south sea".  4 0 The company had undoubtedly drawn some of its  41 information from French journeys of exploration, but  42 the company had also learned of the "Western Ocean"  43 from its own employees.  And this is shown by a 1738  44 letter to the company from Richard Norton, their  45 trader at Churchill on Hudson Bay.  And he makes  46 reference, and I've underscored this portion for your  47 lordship, to: 23962  Submissions by Mr. Rush  1  2 "Atchue-thinnies, a people bordering near the  3 Western Ocean who are great enemies to our  4 inland trading Indians."  5  6 Now, the "inland trading Indians" were the Cree  7 and Assiniboine.  The Atchue-thinnies were the  8 Blackfoot.  The French called these people  9 Yhatchelini, which is the same word in a different  10 Cree dialect.  The latter were the people the  11 Chevalier de Niverville's men had met in 1751 when  12 they established their Fort la Jonquiere near the  13 Rocky Mountains.  And De Niverville reported that they  14 were then at war with the Assiniboines.  15 Now, dealing with the Hudson's Bay Company  16 boundaries and their uncertainty, prior to 1763 the  17 crown claimed the pretensions of the Hudson's Bay  18 Company to combat French claims to the same areas.  By  19 Article X of the Treaty of Utrecht of 1713, the French  20 agreed to restore to Britain "the bay and straits of  21 Hudson, together with all lands, sea-coasts, rivers  22 and places situate in the said bay and straits and  23 which belong thereunto, no tracts of land or of sea  24 being excepted, which are at present possessed by the  25 subjects of France."  Article X, however, also  26 provided for the appointment of commissaries to  27 determine the limits to be fixed between Hudson's Bay  28 and the French "which limits both the British and  29 French subjects shall be wholly forbid to pass over,  30 or thereby to go to each other by sea or by land".  31 Commissaries were in fact appointed in 1719.  The  32 British delegates were instructed to claim as the  33 boundary a line drawn from the coast of Labrador at a  34 latitude 58 1/2 degrees north, running in a  35 south-western direction through Lake Mistassini to the  36 49th parallel where "another line shall begin, and be  37 extended westward from the said lake, upon the 49th  38 degree of northern latitude." France did not accept  39 these claims, and the matter was left unresolved until  40 it was definitively settled by the conquest of New  41 France.  42 Despite the lack of an actual determination of the  43 boundary, the 49th parallel appears on some  44 contemporary British maps as part of the boundary  45 between New France and the Hudson's Bay Company  46 territory.  Emmanuel Bowen's 1763 map of North America  47 shows a dotted line following above Lake Superior 23963  Submissions by Mr. Rush  1  2  3  4  5  6  THE  COURT  7  MR.  RUSH:  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  THE  COURT  36  MR.  RUSH:  37  THE  COURT  38  39  MR.  RUSH:  40  THE  COURT  41  MR.  RUSH:  42  THE  COURT  43  MR.  RUSH:  44  45  46  THE  COURT  47  MR.  RUSH:  along the 49th parallel with the inscription:  "Southern boundary of Hudson's Bay Company Territories  settled by Commissaries after the Treaty of Utrecht."  And that, my lord, is on the map that I just directed  your attention.  :  Yes.  The only point is that it wasn't settled, and no  doubt a concession made by Emmanuel Bowen by pointing  this boundary out by a dashed or dotted line.  The  line, but not an inscription, appears on a map of "The  British Dominions in North America" by Thomas Kitchin  and that's 1154-24.  Now, by contrast, my lord, other contemporary  British maps either show a height of land boundary,  rather than the 49th parallel, or show no boundary at  all between New France and the Hudson Bay Company  territory.  On John Mitchell's 1755 map of North  America, an undulating line follows his perception of  the land's height until it disappears off the map  above Lake of the Woods, and just below 50 degrees  latitude.  Neither Thomas Jefferys' 1761 map of North  America, nor his 1762 map of Canada and the north part  of Louisiana, show the 49th parallel boundary claimed  by British commissaries after the Treaty of Utrecht.  However, on his 1762 map of Canada and the northern  part of Louisiana, a "lands height" between the  Hudson's Bay watershed and Lake Superior is indicated  by a heavy line.  Since this was the French  interpretation of the boundary, Jefferys was probably  trying to indicate it.  And my lord, that is evident in the Jefferys 1762  map to which I've directed your lordship's attention,  and that is 1154-18.  :  Yes.  And does your lordship see the high lands?  :  Yes.  It wanders northerly west of the west edge of  Hudson's Bay.  Yes.  :  And it comes to an indefinite end somewhere --  Yes.  :  -- between.  It encompasses the words "New South Wales" which was  a portion of the trading area of the Hudson's Bay  Company.  :  Yes.  Yes.  Thank you.  Now, my lord, on a "New Map of North America from the 23964  Submissions by Mr. Rush  1 latest discoveries" published in London Magazine in  2 1763, the description "Bounds of Hudson's Bay by the  3 Treaty of Utrecht" follows the height of land north of  4 Lake Superior, before descending, like Mitchell's, to  5 just below the 50th parallel north of Lake of the  6 Woods.  Thus we say there was considerable uncertainty  7 about the Hudson's Bay Company boundary on the west  8 and north-west beyond Lake Superior.  9 Turning to the Royal Proclamation and its  10 application to Rupert's Land, the great Indian Reserve  11 created by the Royal Proclamation of 1763 expressly  12 excludes the territory of the Hudson's Bay Company in  13 its sub-paragraph 2.  And your lordship will remember,  14 and I'll just cite these words for you, part IV,  15 paragraph 2 says this:  This is the paragraph dealing  16 on restrictions on settlement.  17  18 "And we do further declare it to be our Royal  19 will and pleasure for the present as aforesaid  20 to reserve under our sovereignty, protection  21 and dominion, for the use of the said Indians,  22 all the lands and territories not included  23 within the limits of our said three new  24 governments or within the limits of the  25 territory granted to the Hudson's Bay Company  26 as also the lands and territory lying to the  27 westward are the sources of the rivers which  28 fall into the sea from the west and north-west  29 as aforesaid."  30  31 Now, it is our submission that the Indian land  32 provisions of the Proclamation applied equally to the  33 Hudson's Bay Company territory as to any other British  34 colony or plantation in America.  35 Now, it is true, as I've just indicated, that the  36 Royal Proclamation of 1763 expressly excludes the  37 territory of the Hudson's Bay Company from the great  38 Indian reserve.  And, as I've indicated to your  39 lordship, it's by defining the Indian reserve  40 negatively to determine what it is to the west -- or  41 to the west and north-west.  42 As noted above, the Hudson's Bay Company did claim  43 that its territory was bounded on the west by the  44 western ocean, and British commissaries appointed  45 after the Treaty of Utrecht did claim as a southern  46 boundary with New France the 49th parallel  47 indefinitely westward.  Were this interpretation 23965  Submissions by Mr. Rush  1 adopted by the framers of the Proclamation, then what  2 is now British Columbia would have been excluded from  3 the great Indian reserve.  The major support for such  4 a supposition comes from the Board of Trade's report  5 of June 8, 1763 which encloses the 1763 Bowen map, and  6 I've dealt with this section that's on -- I've recited  7 on page 181.  8 Now, my lord, though the Bowen map has limits  9 painted on for Canada, and I ask you here to look at  10 the original photograph of the map that has been  11 provided by the defendant province because it shows it  12 in a way that the black and white copy doesn't.  13 Though the Bowen map has those limits painted on for  14 Canada and for Florida, there is no colouration to  15 indicate the boundaries of the proposed Indian  16 territory.  The defendant's witness Dr. Greenwood  17 agreed with this conclusion.  Hence, the Bowen map  18 does not suggest a limit for the north-western  19 boundary.  20 Nevertheless, it could be argued that such a  21 north-western boundary is implied.  The southern  22 boundary of Hudson's Bay is shown following the 49th  23 parallel.  And above the headwaters of the  24 Mississippi, the international boundary by the Treaty  25 of Paris, Bowen has written "Mississippi R. its Head  26 very uncertain Situated according to the Indians in a  27 very Marshy country about the 50th degree of  28 latitude."  By this account the Mississippi would have  29 risen in the Hudson's Bay Company territory.  30 Now, if this interpretation is correct, it affects  31 only the extent of the great Indian reserve in the  32 north-west.  The Indian lands provisions of the  33 Proclamation applied to all British "colonies or  34 plantations in America" which number included the  35 Hudson's Bay Company territory of Rupert's Land.  36 The Royal Charter of 1670 to the Hudson's Bay  37 Company clearly styles the territory granted as "from  38 henceforth reckoned and reputed as one of our  39 Plantacions or Colonyes in America called Rupert's  4 0 Land".  41 When, in 1690 Parliament passed an act temporarily  42 confirming the Hudson's Bay Company in its privileges,  43 the Charter of 1670 was ratified as if "word for word  44 recited" and this affirmed the status of Rupert's Land  45 as a colony.  The company itself interpreted the  46 statute as "allowing our Lands and territories to be a  47 Colonie belonging to the Crowne of England". 23966  Submissions by Mr. Rush  1 In the 1721 statute, section 24 of the Act  2 provided that "all beaver-skins and other furs of the  3 product of any of the British plantations in America,  4 Asia or Africa" shall be imported directly into Great  5 Britain and not elsewhere.  Since Rupert's Land was a  6 primary source of beaver belts, it was clearly a  7 plantation within the meaning of the statute.  8 Copies of a draft Proclamation of 1760 for  9 proclaiming the new King, George III in "His Majesty's  10 respective Plantations in America" were sent to the  11 Hudson's Bay Company which accordingly had them  12 published in Rupert's Land.  13 Though the Hudson's Bay Company was primarily a  14 trading company, the possibility of settlement had  15 been included in its Charter.  The company had been  16 empowered to establish such "colonies or plantations,  17 towns or villages" as the governor and company saw  18 fit.  19 Now, my lord, we also argue that Rupert's Land is  20 a proprietary government.  And it's our submission  21 that the section of the Proclamation's land purchase  22 provisions which cover the Hudson's Bay Company  23 territory are those relating to proprietary  24 governments.  Where lands lie "within the Limits of  25 any Proprietary Government, they shall be purchased  26 only for the Use and in the name of such  27 Proprietaries, conformable to such directions and  28 instructions as We or they shall think proper to give  29 for that Purpose".  30 And just taking you now to paragraph 4, sub (a) my  31 lord, that passage is the latter portion of paragraph  32 4 (a) beginning at the fifth line down, fifth line  33 from the bottom.  34 Now, the 1670 Charter conferred on the governor  35 and Hudson's Bay Company rights over Rupert's Land as  36 "absolute Lords and proprietors".  37 In 1783, the former Chief Justice of Georgia,  38 Anthony Stokes, classified the Hudson's Bay Company  39 territory as a proprietary government.  And he says in  40 the middle paragraph:  41  42 "Many of the Colonies which are contained in the  43 above enumeration of provincial establishments,  44 or King's Governments, were formerly  45 Proprietary Governments; but all the  4 6 Proprietary Governments which remained at the  47 breaking out of the Civil War (the American 23967  Submissions by Mr. Rush  1 Revolution) were the government at the  2 Hudson's Bay. called New Britain, the Province  3 of Pennsylvania, the three counties of New  4 Castle, Kent and Sussex on Delaware and  5 Maryland."  6  7 Now, my lord, in this respect the Hudson's Bay  8 Company qualifies as a proprietary government for the  9 purposes of the Indian land purchase provisions in  10 paragraph 4, sub 1 (a) of part IV of the Proclamation.  11 Now, Rupert's Land can also, in our submission, be  12 considered a Charter colony.  It is true that, in  13 1765, Sir William Blackstone identified a third type  14 of colony, in addition to King's provinces and  15 proprietary provinces, he called Charter governments.  16 The Hudson's Bay Company could, alternatively, be  17 considered one of the latter.  In our view, nothing  18 turns on the distinction, as the Royal Proclamation  19 applied to such colonies as well.  And I cite this  20 portion of Blackstone:  21  22 "With regard to their interior polity, our  23 colonies are properly of three sorts..."  24  25 And the third is:  26  27 "Charter governments, in the nature of civil  28 corporations, with the power of making by-laws  29 logs for their own interior regulations, not  30 contrary to the laws of England; and with such  31 rights and authorities as are specially given  32 them in their several charters of  33 incorporation."  34  35 The original charter colonies had included  36 Virginia and New England colonies of Massachusetts  37 Bay, Rhode Island and Connecticut.  38 In 1763, the remaining charter colonies on the  39 eastern seaboard were Connecticut and Rhode Island.  40 The remaining proprietaries in that region were  41 Pennsylvania, Delaware and Maryland.  42 The Proclamation, of course, was clearly intended  43 to apply to Connecticut, as to all the existing  44 colonies.  In a dispatch to Jeffery Amherst in January  45 of 1763 Lord Egremont indicated that some people from  46 Connecticut had been making settlements under  47 pretended purchases from the Indians in the 2396?  Submissions by Mr. Rush  1 neighbourhood of the Susquehanna and Delaware Rivers.  2 Amherst was ordered to "employ every legal means in  3 your Power" to "induce the People of that Colony to  4 desist".  And here the passage of that dispatch is  5 contained on 185, 186, and I simply direct your  6 attention, my lord, to the latter few lines which  7 suggests that the Proclamation is in the works or  8 intended.  "And I may inform you that a Plan for this  9 desirable End is actually under Consideration."  10 Now, the former Georgia Chief Justice Stokes, in  11 1783, pointed out that those early proprietary  12 colonies with charters from the crown had nonetheless  13 purchased land from the Indians.  And Stokes said  14 this:  15  16 "The English Puritans who first settled in New  17 England, notwithstanding they were furnished  18 with a charter from their sovereign, purchased  19 of the Indians the lands they resolved to  2 0 cultivate.  And this laudable example was  21 followed by Mr. William Penn, who planted the  22 Colony of Quakers in Pennsylvania."  23  24 The Hudson's Bay Company, furnished with a charter  25 from their sovereign, also proposed making purchases  26 from the Indians.  This was expressly stated in  27 instructions from the company to Governor Nixon in  28 1680.  And I ask you, my lord, on 187 to look at the  29 postscript.  30  31 "As we have above directed you to endeavour to  32 make such Contracts with the Indians in all  33 places where you settle as may in future times  34 ascertain to us all liberty of trade and  35 commerce and a league of friendship and  36 peaceable cohabitation.  So we have caused Iron  37 marks to be made of the figure of the Union  38 Flagg wth whch wee would have you to burn  39 Tallys of wood wth. such ceremony as they shall  40 understand to be obligatory and sacred."  41  42 Now, turning to the question of the Hudson's Bay  43 as a trading corporation, even if it could be argued  44 that the Hudson's Bay Company, as a trading or  45 business corporation, was somehow distinct or unique  46 from the other colonies in North America, kind of a  47 Hudson's Bay Company exceptionalism, the historical 23969  Submissions by Mr. Rush  1 evidence shows that similar chartered corporations  2 were held to be subject to the Proclamation.  3 In 1768, His Majesty received a petition from  4 certain individuals "praying a Grant under certain  5 Conditions, of all Copper Mines in the Country  6 circumjacent to Lake Superior".  The Board of Trade,  7 to which the petition was referred, reported to His  8 Majesty in Council that "the system adopted by Your  9 Majesty's Proclamation of the 7th October 1763, does  10 preclude all establishments in the Interior Country  11 adjacent to the Great Lakes."  12 Their Lordships recommended that no action be  13 taken until both the commander in chief in North  14 America and the superintendent for the northern  15 district had reported by what means the Indians "might  16 be induced to consent to such establishments".  Both  17 General Thomas Gage and Sir William Johnson agreed  18 that the mining proposal was a good one, but stressed  19 that no such projects should be undertaken until, in  20 Gage's words, "the Indians are fully apprised of  21 everything that is intended to be done and that they  22 shall give their free and full consent thereto".  23 On June 30th, 1769, at Michilimackinac, Bostwick,  24 Henry Bostwick, John Chinn, Jean-Baptiste Caddot, and  25 Alexander Henry, on behalf of the mining adventurers,  26 secured the consent to the proposed operation of  27 several of the Indian Nations concerned; and this  28 agreement was confirm a short while later by other  29 chiefs from Lake Superior.  30 The necessity and form of such Indian consent was  31 specifically set out in the Royal Charter to the  32 "Governor and Company of Adventurers for the Working  33 Mines in about and under Lake Superior in America"  34 approved by His Majesty in Council on 19 June, 1772.  35 The Charter refers in its preamble to the discovery of  36 various minerals in places "Bordering upon or about  37 Lake Superior in the Country of the Chippawas and  38 other Indians in America", and then provides, and I  39 quote:  40  41 "Witness:  And we do by these presents Further  42 Give, Grant and Confirm unto the said Governor  43 and Company and their Successors for ever that  44 they may take and purchase from the Indians or  45 other Natives of the said Countrys in and about  46 Lake Superior all such Lands, Islands and  47 places within the Limits herein before 23970  Submissions by Mr. Rush  1 Described as are or shall be necessary to work  2 and carry on such Mines ..."  3  4 Now, the mining company had been granted, inter  5 alia, the mining lands adjacent to the Hudson's Bay  6 Company territory north of Lake Superior, whether the  7 49th parallel or the height of land is adopted as the  8 actual boundary.  Indeed, the location where the  9 company began to mine, at Pointe aux Mines, on the  10 northeast side of Lake Superior, is less than 100  11 miles from the height of land, the more northerly of  12 the two boundaries.  13 Now, we would ask your lordship to suppose, in the  14 hypothetical, that the Hudson's Bay Company had  15 decided during this period to develop the minerals on  16 its side of the boundary, and the Indian inhabitants  17 had objected.  Would the crown's officials have  18 answered that they had no recourse, as Rupert's Land  19 was not subject to the provisions of the Proclamation?  20 In our submission, any such refusal to treat would  21 have brought about exactly the type of mischief the  22 Proclamation was designed to prevent.  The same  23 conclusion is reached if we consider land settlement  24 rather than mineral development.  25 Now, in the period immediately following the  26 Proclamation, General Amherst proposed a scheme which  27 would have allowed settlement in a new colony based at  28 Detroit.  Now, that's of course far east of the  29 Appalachian settlement line.  In a map attached to his  30 treatise on the Mississippi Valley in British  31 politics, Clarence W. Alvord delineates the boundaries  32 of this proposed Detroit colony as taking in the  33 north-west side of Lake Superior.  Dr. Greenwood knew  34 nothing that would contradict Dr. Alvord's depiction  35 of the proposed boundaries.  Thus, the boundaries of  36 this proposed Detroit colony would have abutted those  37 of the Hudson's Bay Company on the north.  38 Had the Detroit colony been approved, and it  39 wasn't, the lands in question would have been acquired  40 from the Indians in accordance with the land purchase  41 provisions of the Proclamation.  In 1772, the crown  42 authorized a new colony called Vandalia to be formed  43 in Ohio River lands which had been purchased in 1768  44 from the Six Nations and other tribes.  45 Suppose, my lord, that in the same period the  46 Hudson's Bay Company had proposed to settle lands  47 north-west of Lake Superior on its side of the 23971  Submissions by Mr. Rush  1 boundary.  And suppose the Indian tribes of their  2 territory had protested.  Such tribes were already in  3 contact with Sir William Johnson, superintendent of  4 Indian Affairs for the northern district, as Johnson  5 indicated to the commander in chief, General Gage, and  6 we there note the reference.  7 In our submission, it is absurd to think that the  8 crown would have declined to enforce the Proclamation  9 in the Hudson's Bay Company territory on the grounds  10 that Rupert's Land was not included.  As Professor  11 Slattery states in his treatise on the Royal  12 Proclamation, the measures set out in part IV were  13 designed for the protection of unceded Indian lands  14 throughout the British dominions in North America.  15 And he says at page 260:  16  17 "There appears to be no reason to think that the  18 indigenous peoples of the Hudson's Bay  19 territories were any less the objects of the  20 crown's solicitude than those in other  21 provinces, among them such proprietary colonies  22 as Pennsylvania.  It has been suggested,  23 nevertheless, that the exclusion of Rupert's  24 Land from the Indian country described in  25 paragraph 2 indicates that, for some reason,  26 the crown did not intend the other provisions  27 of part IV to apply to it.  This contention  28 overlooks the fact that both paragraphs 1 and 4  29 (a) are drafted in terms leaving no doubt that  30 they extend in scope beyond the Indian  31 country."  32  33 Now, my lord, I ask you to apply that reasoning  34 and to adopt that reasoning in terms of the reach of  35 part IV, particularly paragraphs 1 and 4 (a), of the  36 Proclamation to the territory claimed by the Hudson's  37 Bay Company.  38 Now, I want to turn to the question that's at the  39 bottom of page 192, there being no north-western limit  40 to the great Indian reserve in the Royal Proclamation.  41 Now, it's our submission, stated at the bottom of 192,  42 my lord, that the great Indian reserve established by  43 the Royal Proclamation of 1763 was not limited on the  44 north-west by any supposed intersection of the  45 southern boundary of the Hudson's Bay Company  46 territory with the headwaters of the Mississippi.  We  47 submit that there is virtually no concrete evidence 23972  Submissions by Mr. Rush  1 that such was the crown's intention.  2 There is no question that the Mississippi River  3 from its source to its mouth became the international  4 frontier between France, and I put in there Spain  5 because of the private agreement that led to Spain's  6 claims in that area, and Great Britain by the Treaty  7 of Paris.  8 And, it is true that the line of the 49th parallel  9 above the Lake of the Woods is shown on the 1763 Bowen  10 map as a dotted line, as the "boundary of Hudson  11 the Treaty of Utrecht".  But this was a  12 British claim as against France, another European  13 power, which tells us nothing about the Hudson's Bay  14 Company's rights as against other British subjects  15 including the Montreal-based traders trading into the  16 north-west.  17 When the Treaty of Paris was signed on 10  18 February, 1763, France's claims to Canada were  19 transferred to Great Britain.  The Hudson's Bay  20 Company's pretensions, as against France, in regard to  21 Rupert's Land therefore ceased to correspond with  22 Britain's territorial claims.  Any conflict over the  23 location of the boundaries of Rupert's Land was no  24 longer an international issue between Britain and  25 France or Spain, but rather an internal issue between  26 the company and other British interests.  27 Now, in these circumstances, my lord, the rule  28 regarding the conclusive nature of the crown's  29 territorial claims would no longer apply.  And I cite  30 Lord Justice Atkin in Fagernes, and this passage:  31  32 "Any definite statement from the proper  33 representative of the crown as to the territory  34 of the crown must be treated as conclusive.  A  35 conflict is not contemplated between the courts  36 and the executive on such a matter, where  37 foreign interests may be concerned..."  38  39 And that case deals with a claim by a local interest  40 as against a foreign interest.  41 Because there was no conflict with a foreign  42 interest, namely France, this rule would not apply and  43 the conflicting claims claims on the basis of  44 international law criteria could be examined.  As  45 such, the degree of occupation or the sufficiency of  46 governmental control in the area would be relevant  47 factors.  Given the limited Hudson's Bay Company 23973  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  presence in the west and south-west of North America,  their claim can be taken as little more than  pretensions not operating against the British crown.  And the evidence is, my lord, and this is the  significance of the Bellin map, that the traders that  were in the area north-west of Lake Superior and  north-west of the headwaters of the Mississippi, were  French, not British.  Writing in 1783 the former Chief Justice of  Georgia, Anthony Stokes, noted that the Hudson's Bay  Company territorial claims might not be valid against  other British subjects.  With respect to the Hudson's  Bay Company which he called a proprietary government,  Stokes said:  "Yet still with these express conditions, that  the end for which the Hudson's Bay grant was  made be substantially pursued; and nothing may  be attempted which may derogate from the  sovereignty of the mother country."  According to the Royal Proclamation, the great  Indian reserve was not to include the Charter  territory of the Hudson's Bay Company.  However --  :  I'm sorry, Mr. Rush, is that a correct statement,  the Charter territory?  Well, yes, if you take the Charter establishing the  Hudson's Bay Company of, what, 1680 or 1689.  I cited  it to your lordship a few moments ago.  :  I thought it was the land within the limits of the  territory granted to the Hudson's Bay Company.  I  would have thought that you have understated your case  there.  I could have, my lord, but the Royal Charter  establishing the Hudson's Bay claim was in 1670 and it  was a -- by Charter, and in the sense that it was a  defined as a Charter, defined as a Charter territory,  insofar as the great Indian reserve defines it, one  may look at it as a Charter territory.  I've been  arguing here in the alternative, my lord.  I say that  it's a question of characterization how you may see  it, and I've been suggesting that it may be seen as a  Charter as a proprietary and even as a trading  corporation.  :  All right.  Thank you.  Now, my lord, however this may be, as Dr. Greenwood  agreed during cross-examination, the Proclamation 23974  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  specifies no southern boundary for Rupert's Land.  Dr.  Greenwood also agreed with the conclusion of Professor  Rich, a recognized authority on the history of the  Hudson's Bay Company, that "neither the fur trade nor  the limits of the territories of the Hudson's Bay  Company were mentioned in the difficult in the  Definitive Treaty of Peace signed in Paris in  February, 1763".  Professor Rich also concluded that the crown made  no attempt to define a boundary between Rupert's Land  and the vast Indian reservation in the Royal  Proclamation of 1763.  Professor Rich, you will  recall, is the expert on the Hudson's Bay Company.  "Those were now matters which the cession of  Canada turned into disputes between different  sections of His Majesty's subjects.  No aliens  were now concerned, so the trade and the  boundaries did not need to be mentioned in the  Treaty of Peace with the King of France...  But while Canada was thus to be circumscribed,  and a vast Indian reservation was proposed,  there was still no need to define any boundary  between Rupert's Land and the Indian  reservation.  Nor was such a definition  attempted when the Royal Proclamation of 7th  October 1763 set out the terms for the new  colony."  Now --  THE COURT: I think we'll take a short adjournment, Mr. Rush.  MR. RUSH:  Thank you.  THE COURT:  You're planning to go on to five o'clock?  MR. RUSH:  Yes.  THE COURT:  Yes. All right.  THE REGISTRAR: Order in court.  Court stands adjourned for a  short recess.  (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS)  (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  THE REGISTRAR: Order in court.  THE COURT:  Thank you, Mr. Rush.  MR. RUSH:  My lord, proceeding on page 196 with the heading  "Preceding Documents Silent on Northwestern Limit to 23975  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  the Indian Reserve".  After the signing of the Treaty of Paris on 10  February 1763, the official documentary record of the  British government indicates that the government  concentrated on the disposal of the newly acquired  territory and the establishment and maintenance of  satisfactory relations with the Indians.  The first  subject was discussed in a paper entitled "Hints" to  which we've made reference.  Among other things, the  document proposed that Canada be divided into two  provinces and that the Labrador coast from Anticosti  Island to Hudsons Strait should be annexed to  Newfoundland.  On March 24, 1763 Egremont announced  the decision to annex to Newfoundland all the coast of  Labrador.  On March 16th, 1763 Egremont wrote to the  governors of Virginia, North Carolina, South Carolina,  and Georgia, and the superintendents for southern  Indians, noting that the departure of the French and  Spanish will "undoubtedly alarm, and increase the  jealousy of the neighbouring Indians".  He went on to  urge the need to gain the Indians' confidence and  goodwill and to dispel the false notion that "the  English entertain a settled design of exterpating the  whole Indian race with a few to possess and enjoy  their land".  Egremont ordered the officials in this  memorial to call a meeting of the chiefs of the major  southern tribes to inform them of the change-over and  to tell them of Britain's good intentions.  On May 5th, 1763 Egremont requested that the Board  of Trade inquire into the newly ceded territory and to  consider what new governments might be established in  North America.  Egremont spelled out the policy the  government favoured.  And I've there cited it and I  have cited this passage to your lordship earlier.  In this document the government recognizes the  Indians' property rights, the protection and securing  of those rights, the prevention of any invasion of  their hunting grounds and the need to acquire Indian  lands by fair purchase.  John Pownall wrote a draft  report for the Board of Trade in May, 1763.  This  sketch proposed the creation of an exclusive Indian  country which "should be considered as lands belonging  to the Indians, the dominion of which to be protected  from them by forts and military establishments".  :  You mean "for them".  Yes, "for them by forts and military establishments"  with free access for trading purposes to all subjects. 23976  Submissions by Mr. Rush  1 I say western, but I should -- I'd ask your lordship  2 to add the north-western boundary of the Indian  3 territory was not defined but the territory included  4 all lands beyond the proposed limits of Canada "to the  5 west and south-west and beyond the heads of the rivers  6 which fall into the river St. Lawrence from the north  7 and north-west".  No reference is made to Rupert's  8 Land.  9 The final report of the Board of Trade was  10 submitted to the king on June 8th, 1763.  Features of  11 Pownall's draft sketch and "Hints" document are  12 reflected in the report.  The report suggests the  13 creation of three new governments on the American  14 continent and recommends the annexation of several  15 islands and the creation of an Indian country in the  16 American interior.  The Indian country in the report  17 is referred to as "the territory in North America  18 which in Your Majesty's Justice Humanity as well as  19 sound Policy is proposed to be left, under Your  20 Majesty's immediate Protection to the Indians Tribes  21 for their hunting grounds".  The report proposed that  22 Canada, which as claimed by the French consisted of  23 "an immense tract of country including as well the  24 whole lands to the westward indefinitely" should be  25 included in the lands "lying about the Great Lakes and  26 beyond the Sources of the rivers which fall into the  27 River St. Lawrence from North to be thrown into the  28 Indian country".  With the report, as I've said, was  29 the coloured or the Bowen map which hand-coloured the  30 boundaries of the colonies only.  Significantly, no  31 western or northern limits were indicated for the  32 Indian country on this map.  33 The description of the limits of the Indian  34 country in the June 8th report takes no account of  35 Rupert's land.  Bowen's map shows Rupert's Land as  36 falling into the Indian country.  The Board was  37 indifferent to the company's supposed rights.  Clearly  38 the Board felt that the Hudson's Bay Company's  39 territorial pretensions were subservient to the  40 interests of the crown itself.  41 The government's response came on July 14th, 1763  42 when Egremont wrote to the Board of Trade and Egremont  43 approved of the plan to establish three new  44 governments but expressed reluctance to leave such a  45 large area beyond the colonies without civil  46 jurisdiction.  In this document the government  47 distinguishes the question of colonial jurisdiction 23977  Submissions by Mr. Rush  1 from that of settlement and land grants, and  2 maintained that to forbid the latter in the Indian  3 country need not and should not preclude the former.  4 The Lords of Trade responded in their letter to  5 Egremont of August 5, 1763.  In this document the  6 Board of Trade recommended that a Proclamation should  7 immediately be issued by the crown.  It would prohibit  8 land grants or settlements within certain fixed bounds  9 leaving the protected territory free for Indian  10 hunting grounds and the fur trade.  11 Lord Halifax replied on September 19, 1763, and in  12 the reply the government agrees to drop the idea of  13 attaching the Indian country to Canada, and you'll  14 recall that was a proposal at one time, or to any  15 other colony, and accepts the idea that a Proclamation  16 be issued prohibiting, for the present, grants and  17 settlements within the Indian reserve.  The  18 government, however, proposed that the Proclamation be  19 expanded.  The rapid settlement of the new colony  20 should be promoted; the friendship of the Indians  21 should be more speedily and affectually reconciliated,  22 and provisions should be made for the lack of civil  23 government in the interior.  24 In particular, Halifax states that the  25 Proclamation should make known the boundaries of the  26 new colonies and the additions to the old.  Halifax  27 suggests that the Proclamation "should prohibit  28 private purchases of land from Indians", that it  29 should "declare a free trade for all His Majesty's  30 subjects with all the Indians, under license, security  31 and proper regulations" and further empower all  32 officers within the Indian country to seize fugitives  33 and send them to the colonies for trial.  Much of the  34 Proclamation's content was reflected in this letter.  35 Significantly, Halifax directs a prohibition of all  36 private purchases and extends this to cover Indians  37 lands generally.  The free trade was to operate within  38 the Indian country.  The trade is contemplated as  39 going on with "all the Indians of North America".  40 Halifax made no mention of the trade monopoly of the  41 Hudson's Bay Company suggesting strongly here that  42 Rupert's Land was not to be excluded from the trade  43 provisions of the Proclamation.  44 Halifax expresses the government's acceptance of  45 the province of Canada as marked out "in your first  46 report of the 8 of June last and the map thereto  47 annexed".  No definition is given or implied with 2397?  Submissions by Mr. Rush  1  2  3  THE  COURT  4  5  6  7  MR.  RUSH:  8  THE  COURT  9  10  MR.  RUSH:  11  12  THE  COURT  13  MR.  RUSH:  14  THE  COURT  15  MR.  RUSH:  16  17  THE  COURT  18  MR.  RUSH:  19  20  21  22  23  24  THE  COURT  25  MR.  RUSH:  26  27  28  THE  COURT  29  MR.  RUSH:  30  31  32  33  34  35  36  37  38  39  40  THE  COURT  41  MR.  RUSH:  42  THE  COURT  43  MR.  RUSH:  44  THE  COURT  45  MR.  RUSH:  46  47  regard to the north-western extent of the Indian  country.  :  Mr. Rush, is there any jurisprudence which deals  specifically with the question of whether the Royal  Proclamation overlaps with the lands chartered to the  Hudson's Bay Company?  Is it mentioned in Calder?  No, it's not.  :  I didn't think so.  Is it mentioned anywhere else  that you know of?  Not off the top of my head.  I know that it is a  subject matter of litigation I believe.  :  Well, it is here too.  You mean somewhere else?  In another jurisdiction, yes.  :  Yes.  But there's no considered authority by a court that I  know of.  :  Thank you.  Ms. Mandell informs me that there is a decision, and  she tells me it's of the Supreme Court of Canada, but  she cannot tell me the -- she does not know the name  of the case, something like Sigeareak or Sigeareak,  that deals with the question of the two jurisdictions,  if you will.  :  Thank you.  That would be helpful.  And, my lord, we're going to -- it's the subject  matter of discussion or of argument that we will be  making at a later time.  :  Thank you.  Now, my lord, apart from the Bowen and Mitchell maps,  no other contemporary maps of North America even  suggest that the Mississippi River takes its rise  above 48 or 49 degrees latitude.  Now, this becomes an  issue because of the suggestion that there is and was  intended an intersection between the southern boundary  of Rupert's Land and the headwaters of the  Mississippi.  And it is suggested or supposed that  there is and was implied an intersection and that  constitutes the north-western boundary of the great  Indian reserve.  :  The intersection again was between the --  Headwaters of the Mississippi.  :  Yes.  And the southern boundary of Rupert's Land.  :  Yes.  And this argument apparently goes that the  Mississippi was thought at the time to rise at a  latitude north at or north of the 49th degree.  Now, 23979  Submissions by Mr. Rush  1 as a matter of fact, we take issue with that.  As a  2 matter of a reading of the Proclamation we take issue  3 with that, and I've already submitted on that  4 question, but as to the factual matter, I direct your  5 lordship to what's at page 201.  6 Bellin's map of 1755, Exhibit 1149-14, shows the  7 most northerly tributary of the Mississippi as 46  8 degrees latitude, 24 minutes.  In his opinion, Dr.  9 Farley showed this at 46 degrees.  The De Lisle map of  10 1752 shows the source of the Mississippi at about 48  11 degrees north latitude.  Dr. Farley in his testimony  12 said it was closer to 49 degrees.  The Bellin map of  13 1752 shows the Mississippi rising at about 45 degrees,  14 15 minutes on the south stem and 45 degrees, 55  15 minutes on the north stem.  16 The Gibson map of October 7, 1763, was put to Dr.  17 Farley and he agreed that the lowered margins of the  18 Mississippi were at 47 degrees north latitude.  The  19 Palairet map of 1763 shows the Mississippi rising at  20 46 degrees, 40 minutes north latitude.  Dr. Farley  21 agreed Palairet's map placed the headwaters of the  22 Mississippi at this latitude.  The John Entick map of  23 1763 shows the Mississippi headwaters at 46 degrees 20  24 minutes north latitude.  25 Dr. Farley was also shown the Thomas Kitchin map  26 of 1763 and he agreed that the headwaters of this map  27 were shown to rise at about 47 degrees north latitude.  28 Dr. Farley was also shown the D'Anville map published  29 by Jefferys, which is Exhibit 1154-25 and he agreed  30 that the headwaters of the Mississippi here were shown  31 rising at either 45 degrees or 46 degrees north, 30  32 minutes north latitude.  33 The Jefferys map of 1762 was also placed before  34 Dr. Farley and he agreed that the Mississippi on this  35 map rose at about 45 degrees, 30 minutes north, on the  36 lower stem.  Dr. Farley did not take the Bellin, 1752,  37 the Gibson's, 1763, the Palairet, 1763, the Entick,  38 1763, the Kitchin, 1763, or the D'Anville/Jefferys  39 maps into account in doing his comparison of the 18th  40 century maps to determine the state of contemporary  41 knowledge about the headwaters of the Mississippi.  He  42 excluded them as he says as a matter of "convenience"  43 and "simplicity", and I suggest in doing so he  44 obscured what was generally known about the headwaters  45 of the Mississippi.  46 The maps which he did take into account, and the  47 additional maps shown to him, demonstrate that the 23980  Submissions by Mr. Rush  1 headwaters that were known -- at that time were known  2 to rise at a latitude of on the average between 46 and  3 47 degrees north, far south of the 49th degree  4 latitude "intersection" intimated by the Bowen map.  5 None of the maps produced at the time of the Royal  6 Proclamation of 1763, including the Emmanuel Bowen  7 map, physically show a connection between the  8 headwaters of the Mississippi and the southern  9 boundary of the Hudson's Bay Company territory.  10 Rather, they depict that the great Indian reserve had  11 no fixed north-western boundary.  And I ask you to  12 take into account the maps that are there listed, my  13 lord.  14 A series of official maps prepared in 1765-66,  15 entitled the "Cantonment of British forces in North  16 America" show, by a thick black line, the boundaries  17 of the "Lands reserved for the Indians" under the  18 Royal Proclamation.  The boundary of that reservation  19 is open-ended to the north-west.  And I showed your  20 lordship the cantonment map, I believe it was  21 yesterday, with the alterations to 1767.  22 Now, these maps presented the best graphic  23 depiction of what was thought by the British to be the  24 Indian reserve and there is no boundary on the  25 north-west.  26 In the appendix to the 1764 "Plan for the Future  27 Management of Indian Affairs" listing the Indian  28 tribes in the northern district of North America, the  29 Lords of Trade include the Sioux.  The Sioux were the  30 known inhabitants of the gap between the southern  31 boundary of the Hudson's Bay Company, the southern  32 claimed boundary of the Hudson's Bay Company, and the  33 headwaters of the Mississippi.  34 The various maps above cited show the  35 Nadewessioux, which is Sioux, or Sioux between the  36 upper Mississippi and the southern boundary of  37 Rupert's Land as thereon shown.  And what I've done,  38 my lord, is simply run through a number of the maps:  39 The Popple map, which shows the Nadouessans at the  40 head of the Mississippi; the Bellin, 1755, showing the  41 Nadouessans between the headwaters of the Mississippi  42 and Lac Rouge; Jefferys/Bowen, 1777, showing the Nussi  43 or the Sioux between the headwaters of the Mississippi  44 and the Red Lake; the Buache, 1752, showing Sioux  45 L'Est between Mississippi and Lake of the Woods; the  46 Bowen, 1772, showing the Nussi or Sioux between the  47 north arm of the Mississippi and Red Lake; the Buache, 23981  Submissions by Mr. Rush  1 1754, showing the Nadouessis ou Sioux at and above the  2 headwaters of the Mississippi; the Faden, 1777,  3 showing the Sioux or Nadouessians running through  4 headwaters of the Mississippi at about 46 degrees  5 north latitude; the Palairet, 1763, shows the Sioux  6 Orientaux between the headwaters of the Mississippi be  7 and the supposed limits of Rupert's Land.  8 In an enumeration forwarded to the Lords of Trade  9 in November of 1763, Johnson, the superintendent of  10 Indian Affairs for the northern district, states that  11 the Sioux "reside to the westward of the Mississippi".  12 Now, Johnson's jurisdiction did not extend to what was  13 then known or what became known as Spanish territory  14 west of the Mississippi.  Therefore, he must have  15 included the Sioux in his jurisdiction because of his  16 belief that they resided north-west of the upper  17 Mississippi, which by the contemporary maps was  18 justified by the knowledge of the cartographers of the  19 day.  20 Now, my lord, dealing with the Rupert's Land  21 boundary, and to some degree the evidence assumes that  22 there was such a boundary, I'd like you to take into  23 account the evidence of Dr. Farley on this point.  And  24 that is that the boundary was, if it was a boundary,  25 was an uncertain southern boundary.  On the suggestion  26 of counsel for the province, Dr. Farley dropped a  27 section from his draft report dealing with the bounds  28 of Rupert's Land.  As a result of excising this  29 section several source maps were also dropped from his  30 report.  And the reason for this was because those  31 maps did not show on their face "a boundary or apply a  32 name for Rupert's Land" as Dr. Farley noted in his  33 draft report.  The John Rocque map of 1761 was  34 excluded by Dr. Farley.  35 MR. GOLDIE:  Excuse me, my lord, my friend says the reason for  36 this was because "those maps did not show", is he  37 attributing that to counsel for the province, because  38 that's not what the transcript reference refers to?  39 MR. RUSH:  Well, I can't recall whether I'm attributing it to  40 Dr. Farley or whether I'm saying this is my argument.  41 And I'll look at that reference, my lord, but I say  42 that the reason that I argued it was excluded was  43 because those maps show on their face a boundary or  44 apply a name for -- do not show on their face a  45 boundary or apply a name to Rupert's Land.  46 THE COURT:  Well, you don't really have to attribute those  47 remarks at all to make that argument. 23982  Submissions by Mr. Rush  1 MR. RUSH:  No, I don't, my lord.  2 MR. GOLDIE: Well, I would like that attribution removed then, my  3 lord.  4 MR. RUSH:  As Dr. Farley noted in his draft report, my lord, the  5 John Rocque map of 1761 was one that was considered  6 but excluded by Dr. Farley.  It showed a bold label  7 "Hudson's Bay Company Lands" but in its western part  8 this label is accompanied by the even more prominent  9 statement "These parts are entirely unknown".  In his  10 draft report Dr. Farley's opinion was that this map  11 "suggests the great degree of uncertainty that  12 prevailed regarding the extent of Rupert's Land".  "A  13 map by Peter Bell, 1763, published in 1772, had  14 labeled on it "Parts undiscovered" between the line  15 representing the Mississippi River and the southern  16 limit of Rupert's Land.  And, as Dr. Farley said:  17  18 "Neither Jefferys' map..."  19  20 And I think that the name of it there was dropped,  21  22 "...1762, nor Kitchin's North America ... 1794,  23 show any better rendering than a generalized  24 mountain symbol showing the height of land."  25  26 Now, it is obvious why counsel for the province  27 wanted this section excised from Dr. Farley's report.  28 MR. GOLDIE:  My lord, I object to that and I ask my friend to  2 9 withdraw that statement.  30 MR. RUSH:  I'm not going to withdraw the statement, my lord.  31 That is evident from the correspondence.  32 MR. GOLDIE:  Well, produce the correspondence.  33 MR. RUSH:  It's in the —  34 THE COURT:  Mr. Goldie, why can't Mr. Rush argue this?  35 MR. GOLDIE:  Well, it suggests that counsel are seeking to  36 conceal relevant evidence and to alter the report of  37 the expert.  38 THE COURT:  Oh, well, I don't know enough about it to reach any  39 conclusions, but I would have thought that Mr. Rush  40 got this material from a draft report or from a  41 summary or something that he received.  42 MR. RUSH:  Yes, I received a summary and correspondence related  43 to the summary.  44 MR. GOLDIE:  And there was a suggestion that he remove it  45 because it was dealt elsewhere, dealt with elsewhere.  46 THE COURT:  Well, I'm not troubled by the fact that there is a  47 difference between a summary and the final item that 23983  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  is tendered, and I'm not troubled by the fact that  counsel may have had one, two, or several reasons to  do so, and I'm not troubled particularly by the fact  that counsel in argument seeks to assign reasons with  which opposing counsel may not necessarily agree.  GOLDIE:  He can do that all he wants, but it's the inference  that an attempt was made to suppress relevant  material.  COURT:  Oh, I haven't heard any -- I haven't seen anything  of that kind.  GOLDIE:  Well, it's right there, my lord.  COURT:  I would take that as -- "It is obvious why counsel  for the Province wanted this section..." Well, I  haven't read the rest of it.  Is there some suggestion  of suppression here?  I would have thought if it came  from something that had been furnished by way of a  summary, it would be the antipodes of suppression.  GOLDIE:  Precisely.  COURT:  I don't see the suggestion of suppression yet.  Maybe I'll come to it.  RUSH:  My lord, I'm not interested in making any aspersions  about counsel for the province, if that satisfies my  friend.  GOLDIE:  I'm not talking about aspersions of counsel, I'm  talking about the weight that is to be given to the  evidence of the witness, and it's suggested that the  witness was prevented from giving relevant evidence.  RUSH:  Well, my lord, here I rely on Dr. Farley.  COURT:  I can't deal with this because I don't know the  whole story yet, but it seems to me that at its worst,  putting it that way on a purely first basis, counsel  would be entitled to say my learned friend kept this  out because it hurt his case.  He could say that.  I've heard those sort of things said about counsel in  trials, and I think one always takes those in with a  certain amount of reservation to wait to see whether  it's demonstrated or not, and usually nothing comes of  it and it's put aside and thought no more about it.  I  don't know what the result of all this will be, but I  do not at the moment see any reason why Mr. Rush  cannot say what he has said so far in his argument.  Go ahead, Mr. Rush.  MR. RUSH:  My lord, it was disclosed in Dr. Farley's opinion  about the great uncertainty about the south-westerly  boundary of Rupert's Land.  That's the point here that  I'm making.  That's the second sentence.  That's what  I'm interested in here.  MR.  THE  MR.  MR.  MR.  THE 23984  Submissions by Mr. Rush  1  THE  COURT:  2  MR.  RUSH:  3  THE  COURT:  4  MR.  RUSH:  5  THE  COURT:  6  MR.  RUSH:  7  THE  COURT:  8  MR.  RUSH:  9  THE  COURT:  10  MR.  GOLDIE  11  12  MR.  RUSH:  13  14  15  MR.  GOLDIE  16  17  MR.  RUSH:  18  ]  19  THE  COURT:  20  MR.  RUSH:  21  22  23  24  25  26  27  28  29  30  ]  31  THE  COURT:  32  MR.  RUSH:  33  MR.  GOLDIE  34  35  36  THE  COURT:  37  MR.  GOLDIE  38  THE  COURT:  39  40  MR.  GOLDIE  41  42  43  44  45  1  46  47  Now, what is the "it"?  The draft report.  Yes.  The portions that were disclosed, but --  So the "it" refers to the excised portion?  That's correct.  And that, my lord, is referenced --  Did you put the excised portion in?  Oh, yes.  Yes, it's an exhibit.  Yes.  All right.  :  Yes.  Sure, but Dr. Farley wasn't questioned on  that.  Oh, I think he was.  That was in fact Dr. Farley's  opinion, I put that to him directly, and the reference  is at Volume 273 at page 22724.  :  Precisely.  But there was no question put to him  why it was excised.  As I indicated to my learned friend, the argument is  mine; the facts are Dr. Farley's.  Yes.  And Dr. Farley stated, as a matter of fact, that he  set and retained and held his own opinion that he  expressed in his draft report which was taken out of  his final report, and that was that that disclosed Dr.  Farley's opinion about the great uncertainty about the  south-westerly boundary of Rupert's Land.  The fact of  this uncertainty in the state of cartographic  knowledge in 1763, my lord, underscores the lack of  knowledge about Rupert's Land itself.  There was no  fixed southern boundary for Rupert's Land and that is  my point.  All right.  And it is --  :  That was agreed to by the witness.  There never was  any attempt by Dr. Farley here to say that there was  certainty.  I gather he said there was not.  :  He said --  I'm sorry, I gather he said that there was  uncertainties.  :  Exactly.  This was put to him.  "It should be  recognized though that even in the political sense the  limits of that territory were not firmly established.  The representation is based on Hudson's Bay Company  claims made in 1714 and 1715 when France controlled  Canada.  Those claims were given only qualified  support by Britain."  Now, that was put to him from  the so-called excised portions of his report.  "Those 23985  Submissions by Mr. Rush  1 were the opinions that you held at the time of writing  2 this in September, 1987?"  Answer:  "Yes." Question:  3 "You hold those today?"  "Yes. I have to say I haven't  4 made a careful study of all the documents..." and so  5 on and so forth.  And that he -- "...given the context  6 in which this was written, the report was written, it  7 was intended as an outline of the geographic -- well,  8 at least, yes, an outline of geographic background for  9 legal arguments.  So I can't pretend to have looked at  10 all the relevant documents and assessed their relative  11 merits."  12 MR. RUSH:  My lord, the point is that Dr. Farley's report, as  13 tendered, contained no mention of this uncertainty.  14 THE COURT:  Yes.  15 MR. RUSH:  And I think it's significant, and I'm urging your  16 lordship to find that it's significant, that when his  17 draft report was put to him it was -- he concurred,  18 and that the fact is, that it is significant about the  19 absence of any certainty about the south-westerly  20 boundary of Rupert's Land because of the position that  21 we take in this here, that there was no fixed southern  22 boundary for Rupert's Land.  23 Now, we say that it is further proof of the  24 indefinite north-westward reach intended by the  25 language of the Proclamation.  The language of the  26 Proclamation gives no north-westerly boundary to the  27 great Indian reserve and none was intended by the  28 language or the official documentation leading up to  29 the issuance of the Proclamation.  30 We say that it's up to the defendants to prove  31 that a boundary was intended by the intersection of  32 the headwaters of the Mississippi and the boundaries  33 of Rupert's Land.  To do so would be to either rewrite  34 the Proclamation or to imply words in to the  35 Proclamation not justified by any principle, law or  36 rule of construction.  The evidence directed to your  37 lordship, namely, the Bowen and Mitchell maps, is I  38 say atypical and inconclusive.  These maps do not  39 reflect in any sense the state of map knowledge in  40 1763.  Neither map can have the result of inserting  41 nonexistent language into the text of the  42 Proclamation.  These maps are either exceptions to  43 what was generally depicted by cartographers at the  44 time or inconclusive to what they purport to show.  45 They certainly do not show a boundary of the great  46 Indian reserve at the fictional intersection of the  47 Mississippi and Rupert's Land. 23986  Submissions by Mr. Rush  1 Now, my lord, I'd like you now to turn to the  2 question of the trade licences issued after 1763 for  3 the Indian territory in the north-west.  And what we  4 say is that if there is any ambiguity about the  5 north-western boundary of the great Indian reserve  6 established by the Proclamation, which we do not  7 accept, then your lordship should consider ex post  8 facto evidence of the crown's intention in this  9 regard.  When direct control over Indian trade was  10 returned to the colonies in 1768, the government of  11 the province of Quebec, with the crown's approval,  12 began to issue trade licences for the former western  13 hinterland of New France.  By 1769, Governor Carleton  14 of Quebec was giving out licences for the so-called  15 unknown region of the Western Sea or Mer de 1'Ouest.  16 This was well beyond any supposed intersection between  17 the headwaters of the Mississippi River and the  18 southern boundary of Rupert's Land, wherever it was.  19 Although the Royal Proclamation of 1763 had  20 declared trade with the Indians free and open, the  21 draft plan for future management of Indian Affairs,  22 first circulated in July of 1764, and subsequently  23 implemented in part by the commander in chief and the  24 superintendent of Indian Affairs for the northern  25 district, had confined the trade to certain posts in  26 the Indian country.  27 Now, my lord, I make reference to paragraph 4 (b).  28 Now, at the top of 209, and that says 46 but it really  29 should be 4, sub-paragraph (b), and if you'll turn to  30 the Proclamation I'd like you to take note of the  31 first few lines.  And it says, 4 (b):  32  33 "And We do, by the advice of our Privy Council,  34 declare and enjoin, that the trade with the  35 said Indians shall be free and open to all our  36 Subjects whatever; provided that every Person,  37 who may incline to trade with the said Indians,  38 do take out a Licence for carrying on such  39 trade from the Governor or Commander in Chief  40 of any of Our colonies respectively, where such  41 person shall reside..."  42  43 Thus, my lord, wherever the free and open trade  44 was being permitted, that was not the Hudson's Bay  45 Company territory.  46 Now, complaints against confining the trade to  47 certain posts.  Between 1764 and 1768, when control 23987  Submissions by Mr. Rush  1 over Indian trade was returned to the colonies, the  2 crown received many complaints about the confinement  3 of trade to the posts.  And these objections are  4 outlined in a reference with enclosures from the Earl  5 of Shelburne, then the secretary of state, to the  6 Lords of Trade, dated 5th October, 1767.  In his  7 opening paragraph, Shelburne states:  8  9 "Several Memorials and Petitions having been  10 presented to His Majesty, by Merchants trading  11 from hence to North America, or residing in the  12 Colonies, setting forth the present state of  13 the Indian trade and representing the necessity  14 of some new regulation..."  15  16 These memorials and petitions are among the 61  17 documents listed as enclosures to Shelburne's letter,  18 and they're in Exhibit 1027-22.  19 Now, the second document of these, my lord,  20 entitled "On Indian Trade (from Dobie and Frobisher)"  21 is dated at Quebec, November 10th, 1766.  And its  22 author is Benjamin Frobisher, who was later a partner  23 in the North-west Company, and it explains the true  24 extent of the trade carried on from Michilimackinac.  25 And he indicates that the boundaries of the British  26 possessions were limited on the west by the  27 Mississippi but are unlimited to the north-west.  28 And I ask you to look at the bottom.  I'd ask you  29 to read, my lord, the passage there, but I ask you  30 with particular reference to look at the language at  31 the bottom of 210:  32  33 "But the other Indians are innumerable, they  34 inhabit all the Country that lies to the  35 Northward of the River Mississuri (Missouri)  36 and Westward of a strait line, drawn from the  37 Southern part of James Bay, to where the  38 Wabash Empties itself into the Mississippi  39 (except that part reserved for the Hudson's  4 0                     Bay Company."  41  42 Now, he's talking of the north-west.  43 Frobisher continues by noting that traders, if  44 allowed, would travel as had their French  45 predecessors, to La Mer d'Ouest several hundred  46 leagues beyond Michilimackinac.  He states:  47 239?  Submissions by Mr. Rush  1 "and I am certain the Traders, if allowed, would  2 annually disperse themselves in that prodigious  3 extent of Country, to the Distance of two or  4 six hundred Leagues Westward of  5 Michilimackinac, and a great many of them  6 would go, as was always the custom to a place  7 extending from 100 to 200 leagues still  8 further Westward, called by the French, altho  9 very improperly, La Mer D'ouest..."  10  11 And he carries on at the bottom:  12  13 "perhaps this will appear incredible, but it  14 can only be to those who are entirely  15 unacquainted with the situation of the Country  16 and the advantages it has by nature for  17 carrying on such a Commerce."  18  19 Frobisher objects to the fact that French traders  20 from the Mississippi River, as well as the Hudson's  21 Bay Company, were robbing the province of Quebec of  22 its principal source of income.  23 On 212, my lord, I refer you to the fourth line:  24  25 "and the French traders, who go up the  26 Mississippi, together with the Hudson's Bay  27 Company, have for some years past reaped very  28 material advantages therefrom.  The former can  29 by different Branches of the River Mississippi  30 penetrate into Lake Superior, and every other  31 part of the Indian country, to the West and  32 North West."  33  34  35 Finally, Frobisher warns of the dangers posed by  36 allowing foreign traders among the Indians, and offers  37 a classic mercantilist definition of the Indians as  38 consumers of British manufactures.  He then summarizes  39 the advantages to British exploration and commerce of  40 permitting the "free and open trade" envisaged by  41 Royal Proclamation of 1763.  42 On 213, my lord, at the top, beginning:  43  44 "which I venture to affirm cannot be done  45 without allowing a free and open Trade, it  46 would improve and strengthen our Alliance with  47 the Indians; by the means of gaining their 23989  Submissions by Mr. Rush  1 Friendship and Esteem whereby valuable  2 discoveries may be made to the Westward, that  3 would open new Sources for Commerce; the Trade  4 would be carried on by our own subjects to the  5 greatest extent it will admit of and cause an  6 immense Consumption of British manufactures."  7  8 The third enclosure in Shelburne's letter of  9 referral to the Board of Trade was an earlier memorial  10 dated September 20th, 1766 from several Canadian  11 traders.  Like Frobisher, these traders also wanted  12 free trade with the Indians, and argued their case on  13 similar mercantilist grounds.  This is beginning to  14 sound familiar, my lord, to recent arguments for free  15 trade.  16  17 "We think and are well assur'd unless there is  18 Permission for all Persons to Winter with the  19 Indians on their hunting Grounds, that the  20 Trade must every year diminish.  For many  21 Nations of Indians, and those too who have  22 always made the greatest consumption of our  23 British manufacturies; and have brought the  24 Largest Quantity of Furrs and other Peltries to  25 our Market are at so great a distance from any  26 Fort, that it is impossible they shou'd supply  27 themselves, and Return again to their Hunting  28 Grounds in the same year."  29  30 The crown's officials in Quebec fully backed the  31 complaints of the Canadian-based fur traders.  32 Enclosures 18 to 20 in Shelburne's referral to the  33 Board of Trade are a letter to Shelburne from Quebec  34 Lieutenant-Governor Guy Carleton enclosing an exchange  35 of correspondence between Carleton and Sir William  36 Johnson.  37 In his covering letter to Shelburne, dated 28  38 March, 1767 Carleton repeats the traders' major  39 complaint:  40  41 "I enclose a Copy of a letter from Sir William  42 Johnson, together with my Answer, containing  43 the Complaints, which all the merchants here  44 concerned in the upper Country Trade, have  45 repeatedly and very respectfully made me, of  46 the great Detriment the Furr Trade receives,  47 from the Traders being confined to the Forts 23990  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  of Niagara, Detroit and Michilimackinac and  their not being permitted to go amongst the  distant Indians."  Carleton's answer to Sir Williamson Johnson is  dated March 27, 1767.  On 215, my lord, he points out  at the top of the page, I ask you to note that  passage, but it's at the bottom of the page, my lord,  that I direct your attention:  "they compute that a very large Quantity of  Merchandize, formerly passed thro' this  Province to Nations unknown to Pondiac, and too  distant to come to any of our Posts, and that  so much is lost of the Consumption of British  Manufactures."  Now, turning to Shelburne's criticism of the plan  of 1764 --  THE COURT:  Do you think, Mr. Rush, that we should adjourn, or  is there any reason to want to finish that section?  Madam reporter has had a long afternoon.  MR. RUSH:  Yes, my lord, I think that if it -- the section is a  considerably lengthy one, and I see no point in making  a dive to do that.  However, just before we adjourn,  my lord, I would like to point out that the query that  you made concerning any litigation on the question of  the territory of Rupert's Land and its interface with  the Royal Proclamation terms, the question was  considered in this case, and we now have the case  reference, it's Sigeareak, and the spelling is  S-i-g-e-a-r-e-a-k, and the Queen, and the cite is 1966  S.C.R., 645.  And, my lord, we have placed as an  exhibit what is a critique of that case by Professor  MacNeil which is at Exhibit 1027, tab 7, and it's an  article by Kent MacNeil, "Native Rights and the  Boundaries of Rupert's Land in the North-western  Territory".  So your lordship should consider those  two references together.  THE COURT:  All right.  MR. RUSH:  My friend tells me that a reference was made to it in  Baker Lake.  THE COURT:  All right.  MR. GOLDIE:  My lord, before we adjourn, I wondered if we can  fix a time for the discussion of the place that Mr.  Coupland's pages are to play in terms of the argument  before your lordship.  My suggestion is Monday I think 23991  Submissions by Mr. Rush  1 would be unsuitable I think because we start late, but  2 I wonder if we might do it at four o'clock on Tuesday.  3 MR. RUSH:  My lord, first the first point I'd like to make is  4 that it shouldn't be part of the time that we have  5 dedicated to the argument.  6 THE COURT:  Your friend is suggesting that it should not.  7 MR. RUSH:  Yes, but I'd like to suggest that it be a little  8 later in the week, and I suppose Thursday is the end  9 of the week, so perhaps it should be Wednesday.  And  10 I'd like --  11 THE COURT:  At four o'clock?  12 MR. GOLDIE:  That's what is known as a close bracket.  13 Wednesday's fine.  14 THE COURT:  Would you rather do it at nine o'clock some morning  15 rather than four o'clock?  16 MR. GOLDIE:  It's immaterial to me.  For completely extraneous  17 reasons I may not be here, but nine o'clock or four  18 o'clock is immaterial.  19 THE COURT:  What are you planning for next week, Mr. Rush, by  20 way of hours?  21 MR. RUSH:  Well, my lord, maybe before committing myself on the  22 time for next week, I think what I'd like to do is to  23 reserve on the question for this argument and advise  24 your lordship on Monday morning.  I'd perhaps like to  25 take this into account in terms of the schedule that  2 6 we --  27 THE COURT:  Yes.  All right.  28 MR. RUSH:  -- that we're moving on, and perhaps leaving it until  29 Monday will allow me to do that.  3 0 THE COURT:  Yes.  31 MR. GOLDIE:  I should have added, my lord, so that my friends  32 are not misled, that I -- according to my notes, we  33 have a Professor Stagg whose thesis was not marked and  34 I think the same question applies to him.  That is to  35 say, the use that may be made of facts stated in a  36 thesis or a document like that, and it may be that one  37 or two more, but what we're looking for is just the  38 principle --  39 MR. RUSH:  Well, my difficulty, my lord, is that there are a  40 number of similar types of treatises referred to by my  41 learned friends.  42 MR. GOLDIE:  Yes.  43 MR. RUSH:  And at this point it may not be quite so easy for us  44 to discern in what way those treatises have been used.  45 But certainly cases have been used by my friends in a  46 way that apparently controverts the very argument that  47 they propose to make in respect of the treatises. 23992  Submissions by Mr. Rush  1 Now, my concern here is that we have fully  2 appreciated all references to the arguments that my  3 friends have made, and I want to be in a position to  4 examine their treatises to appreciate just how they've  5 been -- how they are being used, so that that's why  6 I'm not eager to leap to fix a schedule on this  7 question.  8 THE COURT:  Yes.  9 MR. RUSH:  And so I'd like to take advice on the question from  10 my colleagues who are examining --  11 THE COURT:  All right.  Well, I think the safe thing is to let  12 the schedule be the first item of business on Monday  13 morning at about eleven o'clock.  How are we doing,  14 Mr. Rush?  Did you —  15 MR. RUSH:  Well, my lord, I'd say we're about a half a day to a  16 day behind.  17 THE COURT:  Yes.  I was afraid of that.  18 MR. RUSH:  And I'll have to take cognizance of that in terms of  19 our schedule next week.  2 0 THE COURT:  Yes.  All right.  21 MR. RUSH:  But I think we will be asking your lordship and the  22 court to sit extended hours.  2 3 THE COURT:  Yes.  24 MR. RUSH:  And perhaps more regularly.  25 THE COURT:  All right.  Well, I think that that's something we  26 should give serious consideration to and I'll hear  27 about it from you on Monday.  28 MR. RUSH:  Thank you.  29 THE COURT:  I wish you all a pleasant week-end.  Thank you.  30 THE REGISTRAR: Order in court.  Court stands adjourned until  31 eleven o'clock on Monday.  32  33 (PROCEEDINGS ADJOURNED TO MONDAY, APRIL 9, 1990, at  34 11:00 a.m.)  35  36 I hereby certify the foregoing to be  37 a true and accurate transcript of the  38 proceedings herein transcribed to the  39 best of my skill and ability.  40  41    42 Tanita S. French  43 Official Reporter  44  45  46  47


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