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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-28] British Columbia. Supreme Court May 28, 1990

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 27524  Submissions by Mr. Goldie  1 THE REGISTRAR:  In the Supreme Court of British Columbia, this  2 28th day of May, 1990.  Delgamuukw versus her Majesty  3 the Queen, at bar, my lord.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord, on Saturday I was dealing with an addendum  6 to part Roman VII, Section 4, and it was with respect  7 to submissions made by --  8 THE COURT:  Roman VII, I think.  9 MR. GOLDIE:  Roman VII, sorry, Section 4.  10 THE COURT:  Yes.  11 MR. GOLDIE:  It was with respect to a submission made by the  12 plaintiffs with respect to St. Catherines Milling.  13 And I had taken your lordship down to page 3 of that  14 addendum, paragraph 3, and I was dealing with the  15 proposition that the question of consent with respect  16 to the acquisition of Indian title.  And I had  17 submitted that if the acquisition of Indian title was  18 considered by the court to require consent, the  19 argument of Canada would have prevailed, a complete  20 proprietary interest limited by an imperfect power of  21 alienation.  That's a quotation from the argument of  22 counsel in Canada and the Judicial Committee.  And I  23 say that was answered by a passage at page 54 of St.  24 Catherines Milling, and --  25 THE COURT:  This is from the Privy Council, is it?  26 MR. GOLDIE:  Yes, it is, my lord.  And I am referring to the  27 passage, I referred to the passage on 54 of the appeal  28 cases report, and I had directed your lordship's  29 attention to the third line from the bottom, which  30 reads:  31 "Dependent upon the goodwill of the sovereign."  32  33 And, of course, my submission is that that refers  34 to the nature of the tenure as well as its term.  And  35 I say at the top of page four of my addendum, nowhere  36 does Lord Watson suggest that the disencumbering of  37 the land requires consent.  To do so would have  38 required him to qualify his words at the bottom of  39 Appeal Cases page 54 through to the top of page 55,  40 which, in my submission, import exactly the opposite  41 and the words I am referring to there are:  42  43 "The lands reserved are expressly stated to be  44 'parts of our dominions and territories' and it  45 is declared to be the will and pleasure of the  46 sovereign that for the present they shall be  47 reserved for the Indians as their hunting 27525  Submissions by Mr. Goldie  1 grounds under his protection and dominion."  2  3 And I say that if his lordship was intending to  4 suggest that the removal, of what he later  5 characterized to be a burden, required consent, then  6 he would have been required to -- he would have  7 certainly, in my submission, explained the emphasis he  8 was putting on the words "the pleasure of the  9 sovereign that for the present they be reserved."  10 THE COURT:  At the bottom of page 3 of your summary, there is  11 this paragraph, "had the acquisition of Indian title  12 required consent", that's your argument, I gather?  13 MR. GOLDIE:  Yes, it is.  14 THE COURT:  And the acquisition you refer to there is the  15 extinguishment?  16 MR. GOLDIE:  That's correct.  I use the word acquisition because  17 that was the argument of Canada, that it had acquired  18 a complete proprietary interest.  19 THE COURT:  By the surrender?  20 MR. GOLDIE:  By virtue of the surrender.  And I say that was  21 wholly negated.  22 THE COURT:  But there was consent to that surrender?  23 MR. GOLDIE:  Yes, it was a treaty.  But when Lord Watson came to  24 refute the argument of Canada, he was at pains to make  25 reference to the tenure was "dependent upon the  26 goodwill of the sovereign", and to emphasize the words  27 from the proclamation, "and it is declared to be the  28 will and pleasure that for the present..." and I say  29 those do not suggest that he considered consent was  30 necessary.  31 Now, Mr. -- it was also suggested by the plaintiffs  32 that the views of Mr. Justice Taschereau were in some  33 way coloured by pre-conceptions.  And I say in the  34 paragraph numbered four, nowhere in the judgment of  35 Mr. Justice Taschereau is there any suggestion that he  36 approaches the issue on other than a "principled"  37 basis.  I make reference to the judgment in the  38 Supreme Court of Canada at page 648.  39 THE COURT:  I am sorry, where do I find that again?  40 MR. GOLDIE:  It's under tab 39 of volume 9 of the plaintiffs'  41 authorities.  42 THE COURT:  At page six —  43 MR. GOLDIE:  648.  4 4 THE COURT:  Thank you.  45 MR. GOLDIE:  And there in the third paragraph on that page, Mr.  46 Justice Taschereau addresses the question of the  47 Crown's dealings since 1763.  He had earlier dealt 27526  Submissions by Mr. Goldie  1 with the situation when -- before the conquest.  But  2 here he addresses the situation with respect to  3 dealings with the Indian peoples after 1763.  And he  4 says, and I quote:  5  6 "It was further argued for the appellants that  7 the principles which have always guided the  8 Crown since the cession in its dealings with  9 the Indians amount to a recognition of their  10 title to a beneficiary interest in the soil."  11  12 THE COURT: I am sorry, I am having trouble understanding that.  13 What is he talking about the cession there?  14 MR. GOLDIE:  The cession is the cession of France.  15 THE COURT:  All right.  I see.  That makes more sense.  16 MR. GOLDIE:  It's the —  17 THE COURT:  All right.  Now I have it.  18 MR. GOLDIE:  And he is addressing the argument that ever since  19 1763 the Crown had dealt with Indian peoples in such a  20 way as to amount to a recognition of their title.  And  21 he says:  22  23 "There is, in my opinion, no foundation for this  24 contention.  For obvious political reasons and  25 motives humanity and benevolence, it has no  26 doubt been the general policy of the Crown, as  27 it had been at the times of the Indian  28 authorities, to respect the claims of the  29 Indians.  But this this, though it  30 unquestionably gives them a title to the  31 favourable consideration of the government, it  32 does not give them any title in law, any title  33 that a court of justice can recognize as  34 against the Crown."  35  36 And he makes reference to numerous quotations on  37 the subject.  And then in the last paragraph he  38 says -- well, he states what in his opinion would be  39 the result of a doctrine which recognized that title.  40 And in my submission, my lord, he rejects the notion  41 that the Indians have a superior title, but he doesn't  42 reject the -- and he rejects the claim that Canada  43 succeeded to a complete title.  But he doesn't reject  44 the notion that they have an interest which should be  45 respected.  46 My friends have also stated that his judgment is  47 contrary to that of Chief Justice Marshall in Johnson 27527  Submissions by Mr. Goldie  1 and Mcintosh, but in fact -- that's page 643, the  2 quotation that he gives in paragraph 3 is from an  3 American state court which cites Fletcher and Peck and  4 Johnson and Mcintosh.  Now, this is directed to the  5 question of before cession.  And he is referring  6 clearly to the statement in Johnson and Mcintosh that  7 I set out subsequently, my lord, at page 24 of my  8 argument.  That's page 24, section 4.  9 And then my friends have stated that Mr. Justice  10 Taschereau's comment at page 649, paragraph 2.  11 THE COURT:  64 9?  12 MR. GOLDIE:  Yes, 649.  I am going back to pick up the next  13 submission by my friends.  14 And in the second paragraph on that page, it is  15 stated, and I quote:  16  17 "The Indians must in the future everyone  18 concedes be treated with the same consideration  19 for their just claims and demands as they have  20 received in the past.  But as in the past, it  21 will not be because of any legal obligation to  22 do so but as a sacred political obligation in  23 the execution of which the state must be free  24 from judicial control."  25  26 My friends say that has been repudiated by the  27 Supreme Court of Canada in Guerin.  I wish to deal  28 with that aspect of Guerin at this point.  And Guerin  29 is in the plaintiffs' authorities at volume five, tab  30 28.  31 THE COURT:  May I have that please, volume five?  32 MR. GOLDIE:  Of the plaintiffs' authorities.  33 My lord, to review familiar ground, Guerin arose  34 out of a statutory surrender of reserve land under  35 section 18 of the Indian Act.  And, more specifically,  36 out of the consequence of Canada's failure to observe  37 the terms of the surrender.  Now, judicial control  38 arose out of this failure, not by any reason of a  39 general interest of the Indians.  The courts cannot  40 compel parliament to enact section 18, but what the  41 courts can do is review acts done under section 18.  I  42 note that the appellant's grounds of appeal, which are  43 set out, and they are paraphrased by Madam Justice  44 Wilson at pages 340 to 341, do not even refer to  45 aboriginal title.  "Number one, section 18 of the  46 Indian Act imposes a trust or at a minimum fiduciary  47 duty on the Crown with respect to reserve lands." 2752?  Submissions by Mr. Goldie  1 Now that's a statutory invocation, if I may put it  2 that way.  3 Ground two, "The federal Court of Appeal should not  4 have allowed the Crown to put forward the concept of  5 political trust as that was not specifically pleaded."  6 Three, "The leased lands were surrendered in trust  7 on very specific terms and that terms were not  8 obtained."  And four, "There was misrepresentation  9 which induced the bands."  10 As I say, none of those things depend upon  11 aboriginal title.  And section 18, in its very words,  12 gave the Crown a discretion, and it was in the  13 exercise of that discretion that the court, or the  14 majority of the court, found that fiduciary  15 obligations came into play.  And that's indicated in  16 Mr. Justice Dickson's judgment in paragraph 2 on page  17 384, where he said:  18  19 "This discretion on the part of the Crown, far  20 from ousting, as the Crown contends, at  21 jurisdiction of the courts to regulate the  22 relationship between the Crown and Indians has  23 the effect of transforming the Crown's  24 obligation into a fiduciary one."  25  26 Madam Justice Wilson characterized the interest  27 which grew out of the utilization of section 18 as one  28 that had its roots in aboriginal title and she  29 identified that with St. Catherines Milling.  30 Beginning at the bottom of page 348, she said, and  31 I quote:  32  33 "While I am in agreement that Section 18 does  34 not per se create a fiduciary obligation on the  35 Crown with respect to Indian reserves, I  36 believe that it recognizes the existence of  37 such an obligation.  The obligation has its  38 roots in the aboriginal title of Canada's  39 Indians as discussed in Calder."  40  41 Then she goes on to describe what that interest  42 was, using the words of Lord Watson, and stating, and  43 I quote from the first paragraph on page 349:  44  45 "That description of the Indians' interests in  46 reserve lands was approved by this court most  47 recently in Smith versus the Queen." 27529  Submissions by Mr. Goldie  1 And she goes on to say:  2  3 "It should be noted that no constitutional  4 issue, such as arose in St. Catherines and  5 Smith, arises in this case, since title to  6 Indian reserve land in British Columbia was  7 transferred to the Crown in right of Canada."  8  9 Now, the whole of her judgment is therefore  10 directed to the interest that Section 18, nature of  11 the interest that section 18 recognizes in reserve  12 lands.  13 Mr. Justice Dickson, as he then was, at page 364,  14 makes no reference to any facts before 1955.  And at  15 page 381 notes that no constitutional problem arises.  16 THE COURT:  Where does he say that?  17 MR. GOLDIE:  Page 381 my lord, paragraph 2.  18 THE COURT:  Yes.  19 MR. GOLDIE:  He is referring there to the situation that arose  20 where a surrender takes place, and the province  21 asserts an interest.  And he said that problem doesn't  22 arise here.  So the province had no interest in the  23 outcome of this case, nor would it, because it's  24 concerned wholly with reserve lands.  25 And page 382, where his lordship states the  26 character of the legal right, he is speaking of  27 reserve lands.  And, I say that is obvious because he,  28 midway down the last paragraph on that page, he begins  29 a sentence with these words:  30  31 "These two aspects of Indian title go together,  32 since the Crown's original purpose in declaring  33 the Indians' interest to be inalienable,  34 otherwise than to the Crown, was to facilitate  35 the Crown's ability to represent the Indians in  36 dealings with third parties."  37  38 Now such dealings can only be performed by the  39 federal government.  So that his characterization, I  40 say, is wholly related to the reserve lands and the  41 obligation that arises upon a surrender of those lands  42 to the federal government under the statutory  43 provisions of section 18.  44 Mr. Justice Estey also noted there was no  45 constitutional issue and in his view the nature of the  46 Indian interest had been settled in St. Catherines,  47 Seybold and reaffirmed in Smith. 27530  Submissions by Mr. Goldie  1 Now, I note on page seven of my addendum, in very  2 brief terms, the nature of the contest in Smith, the  3 grantee of a squatter was seeking as against the  4 provincial Crown an adverse title.  Canada, on behalf  5 of a band, sought an order ejecting him.  That failed  6 because it was held that the surrender of the Indians'  7 lands to the federal Crown was complete and all Indian  8 title had disappeared in the course of that surrender.  9 Therefore, Canada had no status under Section 91(24).  10 So I say, in short, "usufructuary", the usfructuary  11 nature of the Indian interest in reserves was  12 confirmed explicitly by four of the eight judges.  13 Now, to repeat what I said at the outset of this  14 particular section, the judicial control arises out of  15 of the operation of a statute and not by virtue of the  16 inherent nature of aboriginal title.  17 Now, my lord, you may recall on May 15th, the  18 second day of our submissions, I had dealt with the  19 misconception that, in my submission, arose out of the  20 reference to the Starr Chrome case, but that's not  21 what I am addressing right now.  22 THE COURT:  What do you say is the majority judgment in Guerin?  23 MR. GOLDIE:  I say what flows from that is that upon a -- that  24 the courts have the jurisdiction and sometimes the  25 duty to scrutinize the nature of a surrender of  26 reserve lands under Section 18 of the Indian Act.  27 That was done in Smith and the Queen, and it was done  28 in Guerin.  29 THE COURT:  To scrutinize the surrender?  30 MR. GOLDIE:  Scrutinize the nature of the surrender, is it  31 partial, is it complete?  That was the question in  32 Smith, is it partial, is it complete?  Now, in Guerin,  33 that was not the question.  The question was whether  34 the Crown had complied with the terms of the  35 surrender.  And it was -- it was its failure to comply  36 with those terms that gave rise to the remedy.  Now  37 the remedy on the part of the majority was held to be  38 rooted in fiduciary principles.  Mr. Justice Estey  39 would have granted the same remedy but he says it was  40 a simple question of the agent failing to carry out  41 the directions of the principal.  But the judges who  42 referred to the matter, the nature of the Indian  43 interest in the reserve lands was that which had been  44 determined in the St. Catherines case, a personal  45 interest, which upon surrender, complete surrender  46 that is, disappears.  47 Now, my last comment deals with a suggestion by 27531  Submissions by Mr. Goldie  1 the plaintiffs that the numbered treaties were made  2 for the purpose of recognizing the Crown's obligation  3 under the Royal Proclamation.  And my submission, my  4 lord, is that on the facts that does not appear to  5 have been the case.  Treaty 3, which was the treaty  6 that gave rise to the litigation in St. Catherines  7 Milling, was not made to comply with the Royal  8 Proclamation any more than Treaty 8.  And Treaty 8, my  9 lord, was entered into to secure safe passage of  10 people going to the Yukon.  Treat 3, as stated in  11 Morris, whose text has been referred to by my friends,  12 the reason stated in Morris was to protect a  13 transportation corridor at that time.  Now, the tone  14 of the negotiations is indicated by the following  15 extracts from Morris's book on the Treaties of Canada,  16 Exhibit 1246-1, and if my submission, they indicate  17 that there were many tribes, some of whom had not  18 dealt with one another for years, and that there was  19 no idea of exclusive possession or occupancy.  The  20 commissioners gathered together the people that they  21 thought would effect or be affected by the  22 transportation route and dealt with them.  23 Now, I am not going to go through this, but the  24 negotiations are very interesting but nowhere do I  25 find any suggestion of that this was being done in  26 performance of the obligations of the Royal  27 Proclamation.  28 THE COURT:  What is this typescript that follows your page --  29 MR. GOLDIE:  These are extracts from Morris, my lord.  The page  30 numbers follow the extracts.  31 THE COURT:  Yes.  All right.  The statute is from the —  32 MR. GOLDIE:  The statute which I am now going to make reference  33 to is the -- is an amendment to the Dominion Lands Act  34 in bill form, and I am going to suggest to your  35 lordship that the statutory provision in the Dominion  36 Lands Act, which led to the or directed the  37 negotiation of treaties in Rupert's Land, or what had  38 been Rupert's Land, is indicated in the draftsman's  39 notes.  If your lordship would turn to page 51, as I  40 say in bill form, instead of having the explanatory  41 notes opposite the text as is done now, the  42 explanatory notes were -- are provided almost in the  43 text of the bill.  And Section 103, Chapter 55 of the  44 Revised Statutes, 1906 is repealed and that provision  45 is noted and becomes clearer now.  "Explanatory note,  46 the following sections not referred to in foregoing  47 notes have been omitted.  Section 4 of Chapter 55, 27532  Submissions by Mr. Goldie  1 Revised Statutes, which provides that the act shall  2 only apply to territory to which the Indian title has  3 been extinguished, has been omitted."  4 If I may pause there, the Dominion Land Act was an  5 act which permitted settlement and by virtue of this  6 provision it prohibited settlement where Indian title  7 had not been extinguished.  And, they go on to say:  8  9 "...has been omitted as it created a question as  10 to whether the act applied to the Yukon  11 Territory where no extinguishment of Indian  12 title was ever effected for the reason that the  13 same policy was followed in regard to Indians  14 there as was followed on the pacific coast.  15 The only object conceivable for the provision  16 was the making of a statutory guarantee that  17 the condition of the deed of surrender from the  18 Hudson's Bay Company to the Dominion, which  19 provided that the Indian claim should be  20 extinguished within the tract ceded, would be  21 carried out, but as the territory covered by  22 the deed of surrender has been ceded by the  23 Indians, there is no reason on that score for  24 perpetuating the section."  25  26 That makes reference to the terms under which the  27 Hudson's Bay Company surrendered Rupert's Land and one  28 of those terms was that Indian title should be  29 extinguished.  Now that was to safeguard the Hudson's  30 Bay Company.  Now, that completes my excursion, my  31 lord, to deal --  32 THE COURT:  Was that amendment passed?  33 MR. GOLDIE:  Yes, it was.  I deal with the history of this in  34 the counter-claim.  35 THE COURT:  All right.  Thank you.  36 MR. GOLDIE:  Now I return to page six of my main argument,  37 paragraph 11, my lord, page six.  The Judgments of  38 Judson, J. and Hall, J. in Calder are the bases for  39 saying that a non-proprietary aboriginal right may  40 arise under the common law of Canada.  This was the  41 conclusion reached in Baker Lake, page 556, and by Mr.  42 Justice Dickson, as he then was, in Guerin, page 376.  43 To recapitulate, in Calder the British Columbia Court  44 of Appeal concluded as stated in the headnote:  45 "There was no treaty, statute or agreement  46 having statutory effect conferring upon  47 them..." 27533  Submissions by Mr. Goldie  1 The plaintiffs,  2  3 "Title to the lands in question.  The onus was  4 on the appellants to establish that by some  5 prerogative or legislative act or by some  6 course of dealing by the Crown from which a  7 prerogative act could be inferred, the Crown  8 had ensured to the Nishga aboriginal rights."  9  10 And going to page seven:  11  12 "Do the lands in question which could be  13 enforced by the courts of the province, the  14 appellants have failed to discharge this onus.  15 The plaintiffs' argument and the Court of  16 Appeal is noted at 74, Western Weekly Reports,  17 page 484:  'The long-term policy of the  18 Imperial government in settled territory  19 throughout the world, especially exemplified in  20 its dealings with the Indians in the eastern  21 part of North America and the Maoris of New  22 Zealand, of buying from the native people has  23 become so firmly entrenched in the policies by  24 which native territories were occupied, that an  25 intention to observe those policies must be  26 attributed to all colonial governments.  The  27 basis for the conclusion of Mr. Justice Judson  28 in Calder quoted at page 556 of Baker Lake was  29 that when the settlers came "the Indians were  30 organized in societies and occupying the land  31 as their forefathers had done for centuries."  32 The latter finding of fact was an admission  33 made by the attorney-general for the purposes  34 of that litigation.'"  35  36 In paragraph 14, I repeat something I had earlier  37 stated, namely, the problem with the claim of the  38 Nishga and then paragraph 15.  Based on these key  39 admissions, Mr. Justice Judson held that the right the  40 existence of which was sought in the declaration  41 prayed for by the plaintiffs was an equitable one  42 dependdent on the goodwill of the sovereign.  He made  43 no finding that the Crown had in fact accepted the  44 existence of the non-proprietary claim that was before  45 the court.  He proceeded upon the premise of the  46 British Columbia Court of Appeal stated in Supreme  47 Court Reports, page 329, that this right, if it ever 27534  Submissions by Mr. Goldie  1 existed, had been lawfully extinguished.  2 When I say premise of the British Columbia Court of  3 Appeal, that was after the Court of Appeal had come to  4 the conclusion that there was nothing in the way of an  5 active state which recognized title, they went on to  6 say but nevertheless we are going to see what happened  7 and went through the famous Calder 13 ordinances.  And  8 I say, in my submission, that that was what Mr.  9 Justice Judson did, he did not find that it existed,  10 he said, at page 329, and the extract in question, my  11 lord, is under tab 4-16, it was the opinion of the  12 British Columbia court, "...that this right, if it  13 ever existed, had been lawfully extinguished..."  14 I say that's the premise upon which he proceeded.  15 Then after reviewing the limited material available in  16 that case, and I say it was limited because of the  17 nature of the declaration sought, Mr. Justice Judson  18 then quoted certain paragraphs from the Tee-Hit-Ton  19 case in the United States Supreme Court.  And at page  20 344, under tab 16, second page --  21 THE COURT:  Sorry, where are you?  22 MR. GOLDIE:  I am quoting from Mr. Justice Judson's judgment and  23 it's under tab 3 -- 4-16 in the yellow binder, page  24 344.  25 THE COURT:  I am sorry.  26 MR. GOLDIE:  I am just picking up the last clause in my text of  2 7 my argument.  28 THE COURT:  4-16?  29 MR. GOLDIE:  Yes.  And, your lordship will see in the third  30 paragraph:  31  32 "In my opinion, in the present case, the  33 sovereign authority elected to exercise  34 complete dominion over the lands in question,  35 adverse to any right of occupancy which the  36 Nishga Tribe might have had..."  37  38 Again, I note the tentative nature of the  39 reference to the title.  40 And then he goes on to say:  41  42 "We were not referred to any cases subsequent to  43 Tee-Hit-Ton and the problem of compensation for  44 claims arising out of original Indian title.  45 The last word on the subject from the Supreme  46 Court of the United States is, therefore, that  47 there is no right to compensation for such 27535  Submissions by Mr. Goldie  1 claims in the absence of a statutory direction  2 to pay.  An Indian Claims Commission Act was in  3 fact passed by Congress in 1946.  I note the  4 concluding paragraph in the reasons for  5 judgments in Tee-Hit-Ton.  In my opinion, it  6 has equal application in the appeal now before  7 us."  8  9 Then he quotes:  10  11 "'In the light of the history of Indian  12 relations in this Nation, no other course would  13 meet the problem of the growth of the United  14 States except to make congressional  15 contributions for Indian lands rather than to  16 subject the government to an obligation to pay  17 the value when taken with interest to the date  18 of payment.  Our conclusion does uphold  19 harshness as against tenderness toward the  20 Indians, but it leaves with Congress, where it  21 belongs, the policy of Indian gratuities for  22 the termination of Indian occupancy of  23 government-owned land rather than making  24 compensation for its value a rigid  25 constitutional principle.'"  26  27 In my submission, my lord, there is nothing in Mr.  2 8 Justice Judson's judgment that the common law of  29 Canada recognized, in a manner enforceable in a court  30 of law, the non-proprietary claim of the Nishga to use  31 and occupancy to the lands they claimed.  And, indeed,  32 when he quotes Tee-Hit-Ton as being "applicable to the  33 appeal now before us", and uses the words, he is using  34 the words "Indian occupancy of government-owned land",  35 which would be consistent with the finding -- with a  36 concept of non-proprietary interest.  37 I am back in paragraph 17, my lord, the  38 declaration sought in Calder assumed the existence of  39 aboriginal title.  It is respectfully submitted that  40 Mr. Justice Mahoney is incorrect in his conclusion to  41 the opposite effect, and that the observation of Mr.  42 Justice Dickson, as he then was, in Guerin at SCR,  43 page 379 is obiter.  44 Now, my lord, it is that observation that I traced  45 through on May 15th, because of its origin with the  46 Starr Chrome case.  And I say that the onus remains on  47 the plaintiffs to prove that there has been such 27536  Submissions by Mr. Goldie  1 acceptance by the Crown of a right as may be enforced  2 or declared in a court of law.  3 The foregoing, and by foregoing I am referring to  4 the paragraphs 1 to 18 of this section, refers to the  5 non-proprietary claim of use and occupancy as that is  6 all that St. Catherines Milling, Calder and Baker Lake  7 were concerned with.  8 I now go on to the claim made in the case at bar.  9 THE COURT:  But doesn't it follow from St. Catherines Milling  10 that there is a non-proprietary interest?  Or do you  11 say that that arises solely from the Royal  12 Proclamation?  13 MR. GOLDIE:  Yes, it does, because the lands were reserved.  The  14 issue was, what was the interest created or  15 acknowledged?  16 THE COURT:  You say it arose -- I will have to be reminded, were  17 the lands in St. Catherines within the hunting  18 reserve?  19 MR. GOLDIE:  Yes.  That was the assumption that was made.  20 And what was more important, or as important, the  21 treaty in question was with people whom the court  22 stated had been there when the reserve was created or  23 their predecessors or ancestors.  24 THE COURT:  Yes.  All right.  When you say reserve, you mean  25 that was the Act of 1850 or the settlement of 1850 as  26 I recall that case, if I am thinking of the right case  27 or am I thinking of Starr Chrome.  28 MR. GOLDIE:  You are thinking of Starr Chrome because there was  29 a statute youth, two statutes in question there, of  30 1850.  31 THE COURT:  What was the reserve that was created in St.  32 Catherines, what reserve is that?  33 MR. GOLDIE:  That would be the great reserve created by --  34 THE COURT:  By the Royal Proclamation?  35 MR. GOLDIE:  — the Royal Proclamation.  36 THE COURT:  All right.  37 MR. GOLDIE:  In my annotated copy of the proclamation, paragraph  38 V.  3 9 THE COURT:V?  40 MR. GOLDIE:  V. as in Victor.  Sometimes called the Hunting  41 Reserve, sometimes called the Great Reserve.  42 THE COURT:  All right.  43 MR. GOLDIE:  In paragraph 21, -- well, I had not completed  44 paragraph 20.  45 As to the claim of ownership and jurisdiction, it  46 will be submitted that acceptance of a claim that  47 derogates from the sovereignty of the Crown to the 27537  Submissions by Mr. Goldie  1 extent sought in the prayer for relief, cannot be  2 implied.  No legislative or prerogative act has been  3 proven that has such an effect.  Paragraph 72A of the  4 statement of claim, added on January 29th, 1990, is an  5 acknowledgement of the Crown's sovereignty.  There is  6 no acknowledegment on the part of the Crown in right  7 of Great Britain, the colony or the province to any  8 legal right, proprietary or otherwise, in the  9 plaintiffs, their ancestors or predecessors at any  10 relevant time save in respect of lands set apart by  11 the Crown for their use.  12 And I say, as to those lands there is the interest  13 of the kind described in St. Catherines and applied to  14 reserve lands in Guerin.  15 I say in paragraph 21, with respect to the Indian  16 interest in reserve lands set apart for their use, the  17 law in British Columbia long ago recognized and  18 protected that interest.  As has been noted, in 1885  19 Chief Justice Begbie enjoined entry of contractors,  20 purportedly authorized by the Dominion Government on  21 an Indian reserve to construct an immigration shed.  22 And that is what I have already referred to but the  23 extract, the typescript of the bench book is found  24 under tab 4-21.  25 Now, I say on the other hand, when a year later a  26 claim of Indian title in a proprietary sense was  27 raised, he dismissed it in equally strong language.  28 And that is under tab 4-22.  And it's a typescript  29 that is in part filed by Dr. Lane.  And I have read  30 this to your lordship, but I direct your lordship's  31 attention to it now.  On page 2 of the typescript,  32 the -- after referring to Lord Dufferin's speech, he  33 says at the top of page 2, line three:  34  35 "These authorities cited by Mr. Theo Davie may  36 no doubt be considered useful to excite  37 passions in public harangues or in letters to  38 newspapers, but they are quite out of place  39 here.  The very book, the very case from which  40 you cite the unsuccessful advocates view  41 contains quite a long historical chain of  42 authorities. (I took the book from him and read  43 at pages 206-209, 229-30, etcetera), showing  44 the negation of all Indian rights to the land,  45 or to any land, before reserves have been duly  46 made and that the only right recognized by our  47 law (and I believe the law of all civilized 2753?  Submissions by Mr. Goldie  1 nations) is merely a right of occupation, on  2 the land, at the will of the Crown."  3  4 And I took your lordship to the case that had been  5 referred to there, which is the trial judgment in St.  6 Catherines Milling and referred to the pages in  7 question, which Chief Justice Begbie was referring to.  8 And then I come to paragraph 23, the question is  9 whether there was any aboriginal interest in what is  10 now British Columbia prior to 1858.  And I should say  11 aboriginal interest acknowledged in what is now  12 British Columbia prior to 1858.  13 The plaintiffs rely upon events on Vancouver  14 Island.  It is submitted these are irrelevant to the  15 question of aboriginal title or interest on the  16 Mainland.  Nevertheless, as the two colonies had a  17 common origin in British territory;  shared the same  18 Governor, shared the same governor from 1858 to 1864  19 and became one colony in 1866, there have been many  20 attempts to apply the circumstances of events in one  21 colony to the other.  The differences between the two  22 colonies are marked but the conclusion is the same:  23 aboriginal title in any sense contended for in the  24 case at bar did not exist in either.  I am, of course,  25 referring to the claim for ownership and jurisdiction.  26 What led to the establishment of the colony on  27 Vancouver Island has been amply documented.  In  28 addition to the introduction to the Fort Victoria  29 letters, 1846 to 1851, and to Rich's History of the  30 Hudson's Bay Company, of which an extract is found at  31 tab 23 of Exhibit 1056, it's Rich's history which in  32 addition to the Fort Victoria letters, provides a  33 background for the creation of the colony and of the  34 role of the Hudson's Bay Company in respect to it.  35 And I am not going to make any extended reference, my  36 lord, to the -- to these, but I do draw your  37 lordship's attention under tab 4-25 to the events  38 which preceded the creation of the colony.  Because  39 the Hudson's Bay Company had been at Victoria for  40 something like six years before the colony, and it's  41 at page Roman xix, where the learned author of the --  42 the introduction, Doctor Ormsby, says this, paragraph  43 2:  44  45 "The Council of the Northern Department in  46 session at Norway House in June 1842 approved  47 the building of a depot..." 27539  Submissions by Mr. Goldie  1 Then I go down to the last sentence:  2  3 "To undertake both these tasks, James Douglas  4 left Fort Vancouver on March 1, 1843."  5  6 Next paragraph:  7  8 "At Camosun, he addressed the Songhee Indians,  9 telling them that a trading post would be  10 built; they gave their approval and volunteered  11 to assist with the work.  Douglas, who had a  12 force of only 15 men, offered one two-and-a-  13 half blanket for every 40 cedar pickets cut.  14 While negotiations were taking place, he took a  15 little time to consider the exact location for  16 a depot."  17 Et cetera.  18 And then at page 22, the third paragraph on that  19 page:  20  21 "On May 31st, 1849, Chief Factor James Douglas,  22 accompanied by his family, left Fort Vancouver  23 to travel by way of the Cowlitz Portage and  24 Fort Nisqually, and across the Strait of Juan  25 de Fuca to Fort Victoria. Attended by a single  26 Sandwich Islander and an invalid sailor, he  27 transported to Vancouver Island 'our collected  28 treasures of the preceding winter and spring  29 say 636 lbs. of Gold Dust, and 20 packs of  30 Otters, worth altogether about 30,000 pounds...  31 With his arrival, Fort Victoria superseded  32 Fort Vancouver as the Hudson's Bay Company's  33 Pacific headquarters."  34  35 Then the first sentence, first two sentences of the  36 next paragraph:  37  38 "The last three years that Douglas spent at Fort  39 Vancouver were unlike any that he or Peter  40 Skene Ogden or John Work had experienced during  41 their long service west of the mountains.  42 These men, composing in 1849 the Board of  43 Management of the Columbia District, were all  44 veterans of the best days of the Hudson's Bay  45 Company's operations in Old Oregon."  46  47 And then after over the page, the last paragraph: 27540  Submissions by Mr. Goldie  1 "The company soon had another motive for finding  2 a transport route entirely within British  3 territory.  After the massacre in December 1847  4 of Dr. and Mrs. Marcus Whitman and twelve other  5 persons at the Methodist Missioin near Walla  6 Walla, the American settlers in the Willamette  7 valley made war on the Indians. The Cayuse War  8 in 1848 closed the Columbia basin to peaceful  9 trade."  10  11 Now that makes reference, my lord, to the fact that  12 the Hudson's Bay Company developed, before and after  13 that event, transportation routes on the mainland.  14 Going back to my text, paragraph 26, in an  15 exercise of its prerogative, the Crown conveyed  16 Vancouver Island to the Hudson's Bay Company by a  17 Royal Grant dated January 13, 1849.  And that is under  18 tab 46, my lord.  I am sorry, 26.  The purpose of the  19 grant is clear from its extensive recital as well as  20 from the operative parts.  And I paraphrase or  21 summarize the recitals.  After reciting the fact of  22 the Royal Charter of 1670 of Rupert's Land; the 1803  23 Act; the 1821 Act, those are the two acts of granting  24 jurisdiction to the courts of Lower Canada, my lord  25 that we discussed on Saturday, the 1838 exclusive  26 licence for 21 years to trade with the Indians; the  27 Oregon Boundary Treaty of 1846; the fact that lands  28 and territories of the Crown lie westward and  29 northward of Rupert's Land and eastward of the  30 territories, the boundary line, which was defined by  31 the Oregon Boundary Treaty; the trading of the company  32 beyond the limits of its charter and licence and the  33 erection of forts and ports in Crown lands, including  34 Vancouver Island, the boundary between which and the  35 United States is defined by the Oregon Boundary  36 Treaty; the benefits to peace, advancement of  37 colonization, the promotion and encouragement of trade  38 and the protection and welfare of the Indians residing  39 within Vancouver's Island if such island were  40 colonized, the Grant conveyed Vancouver's Island to  41 the company to be held in the same terms as it held  42 Rupert's Land " free and common soccage..."  43 My lord, my understanding of that is that it's the  44 highest form of tenure short of fee simple and  45 requires only symbolic payment to the Crown, I think  46 the Hudson's Bay Charter was two beaver skins, or  47 something like that, whenever a member of the Royal 27541  Submissions by Mr. Goldie  1 Family visited.  Be that as it may, subject to the --  2 the grant was subject to the proviso that if a  3 settlement of resident colonists had not been  4 established within five years, the grant could be  5 revoked.  6 Now, as earlier noted in Baker Lake, Mr. Justice  7 Mahoney found that the Royal Charter of 1670 did not  8 operate, in itself, to extinguish a non-proprietary  9 aboriginal interest Rupert's Land.  And that is, the  10 extract for that is under tab 27.  I ask your lordship  11 to note, however, that at page 577 of his judgment he  12 says that a proprietary right would have been  13 extinguished but a non-proprietary right was not.  14 He, that is to say, Mr. Justice Mahoney,  15 characterized the occupation of Rupert's Land by the  16 company as notional.  From the wording of the Charter  17 he concluded the draftsman knew of the presence of  18 aboriginal peoples there.  The application of English  19 law was restricted to the company, its officers and  20 servants, and from this he inferred acknowledgement of  21 their aboriginal property rights.  He found this  22 conclusion reinforced by what he accepted as the  23 general if not invariable practice in other North  24 American proprietary colonies of extinguishing  25 aboriginal rights by cession or the sword and by the  26 company's own dealings with respect to land required  27 for trading posts.  28 In the course of his analysis, Mr. Justice Mahoney  29 refers to page 565 in a footnote to Chapter 6 of  30 Professor Slattery's thesis "The Land Rights of  31 Indigenous Canadian Peoples" as a very useful analysis  32 of available historical material relevant to the  33 conclusions he reached.  34 Now, the -- and under tab 29 is the facing page of  35 Professor Slattery's thesis and the conclusion, the  36 first page and the last page of his chapter on  37 Rupert's Land, which I take it to be what Mr. Justice  38 Mahoney is referring to.  39 And I say, it is of interest to note Professor  40 Slattery's conclusion to Chapter 8 in his thesis,  41 entitled "Rupert's Land", found at page 164.  That's  42 the last page under the tab, my lord.  And I have set  43 it out in the text of the argument.  Professor  44 Slattery said:  45  46 "The documentary evidence currently available  47 concerning the legal position of Indian lands 27542  Submissions by Mr. Goldie  1 in Rupert's Land prior to 1763 is exceptionally  2 meagre.  Any conclusions on the matter must  3 rest largely upon inferences drawn from general  4 principles of colonial law and view adopted in  5 other American colonies affected by similar  6 proprietary grants.  In essence, the positions  7 suggested by these sources is this.  Rupert's  8 land was initially deemed to be a conquered  9 colony..."  10  11 I pause there to say I know of no evidence which  12 supports that proposition.  And Mr. Justice Mahoney  13 reached exactly the opposite conclusion.  14  15 " which the law and property rights of the  16 inhabitants remained in force until modified.  17 The Charter of 1670 effected a partial  18 introduction of English law, but only as  19 regards company employees and others living  20 under their rule; the customary laws of the  21 indigenous peoples were otherwise unaffected."  22  23 I might pause there, my lord, all of that flows  24 from his conclusion that it was a conquered colony.  25 Continuing:  26  27 "The grant of a proprietary rights in the  2 8 Charter vested in the company no more than what  29 the Crown itself purported to hold in the  30 territory, namely an underlying title to the  31 soil subject to subsisting aboriginal  32 interests, along with an exclusive right to  33 extinguish such interests by succession or  34 purchase. "  35  36 That was Professor Slattery's conclusions.  I note  37 in paragraph 30, Professor Slattery's conclusion that  38 Rupert's Land was a conquered colony was rejected by  39 Mr. Justice Mahoney, who held that Rupert's Land was a  40 settled colony, nor did his lordship accept the  41 conclusion that is the Charter of 1670 conveyed a  42 title, subject to subsisting aboriginal interests,  43 along with the exclusive rights to extinguish  44 interests by cession or purchase.  The wording of the  45 Charter itself is at odds with this conclusion, as is  46 the wording of the Royal Proclamation at odds with  47 Professor Slattery's view that it applied to Rupert's 27543  Submissions by Mr. Goldie  1 Land.  2 And then I make reference to the Sigeareak case,  3 which had, in 1966, rejected out of hand the notion  4 that the Royal Proclamation applied to Rupert's Land.  5 THE COURT:  Should we take a short adjournment, Mr. Goldie,  6 please?  7 MR. GOLDIE:  Yes.  8  9 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING RECESS)  10  11  12  13  14 I hereby certify the foregoing to be  15 a true and accurate transcript of the  16 proceedings herein to the best of my  17 skill and ability.  18  19  20  21  22 Wilf Roy  23 Official Reporter  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 27544  Submissions by Mr. Goldie  1 (PROCEEDINGS RESUMED AT 10:20)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  Thank you, my lord.  I was at the top of page 14,  6 my lord, and I have mentioned that at page 577 Mr.  7 Justice Mahoney had stated that -- I shouldn't say I  8 was at the top of page 14, I had mentioned at page 14  9 that Mr. Justice Mahoney had stated that proprietary  10 right would have been extinguished by the grant of  11 1670.  12 Now, going to where I was at paragraph 31 on page  13 16.  One final observation with respect to the  14 question of aboriginal title and the Charter of 1670:  15 Mr. Justice Mahoney did not have before him in the  16 Baker Lake case either the report of the Select  17 Committee on the Hudson's Bay Company of 1857 or the  18 direct correspondence between the Colonial office and  19 the Reverend G.A. Corbett, which took place in 1858.  20 Nor did he have the letter from Mr. William Kennedy of  21 3, December, 1859.  And that, my lord, is -- under tab  22 31 is the letter from Kennedy, who was a minister who  23 had served in the Red River settlement, and he wrote  24 to the Secretary of State for the Colonies in 1858,  25 stated that he would be unable to give further  26 evidence before the Select Committee on the Hudson's  27 Bay Company, which I referred to, but raising  28 questions about the stewardship of Rupert's Land by  29 the Hudson's Bay Company and raising the question of  30 title.  And I'm not going to read it, my lord, but on  31 the third page of the typed script there is -- the  32 references are sidelined half-way down the bottom of  33 that page, and then at the top paragraph of the other  34 page, and the -- and I have referred your lordship to  35 this before, but I direct it -- your lordship's  36 attention to it again at this point.  At the last page  37 is the -- before the blue separator sheet is Mr.  38 Merivale's minute, which he says:  39  40 "This letter alludes to one matter which is new  41 to me - nor have I heard it referred to in what  42 I have read the evidence before the H.B.  43 Committee - I mean the claims of Indian tribes  44 over portions of Lord Selkirk's land and  45 generally over the territories comprised in the  46 Charter - The Americans have always taken care  47 to extinguish such rights however vague - We 27545  Submissions by Mr. Goldie  1 have never adopted any very uniform system  2 about them.  I suppose the H.B.C. have never  3 purchased from such claimants any of their  4 land.  And I fear (idle as such claims really  5 are, when applied to vast regions of which only  6 the smallest portion can ever be used for  7 permanent settlement) that the pending  8 discussions are not unlikely to raise up a crop  9 of them."  10  11 Under the separator sheet is the letter from Kennedy  12 and the long minute by Merivale.  Kennedy's letter is  13 the 3rd of December, 1859, and he also raises the  14 question of the -- what would happen in the event of a  15 Crown Colony being established at the Red River in  16 respect of the proprietary rights of the Indian in the  17 soil.  And, my lord, I have read to your lordship  18 Merivale's minutes, which conclude on the next page.  19 There's a page over has a sidelining, and then the  20 last paragraph on that page concludes with these  21 words:  22  23 "I think it might be pretty safely assumed, that  24 no right of property would be admitted by the  25 Crown as existing in mere nomadic hunting  26 tribes over the wild land adjacent to the Red  27 River Settlement.  But that agricultural Indian  28 settlements (if any such exist) would be  29 respected, and that hunting ground actually so  30 used by the Indians would either be reserved to  31 them or else compensation made.  32 But I cannot say I think it would be wise  33 to give this particular answer to a mere  34 speculative question from Mr. Kennedy."  35  36 And that indeed is the advice that was adopted by the  37 Colonial secretary.  38 Now, turning back to my paragraph 31, the last  39 line:  The minutes within the Colonial office and the  40 draft reply of the Duke of Newcastle make it clear  41 that the notion of Indian or aboriginal title as  42 giving rise to a proprietary right had never been  43 acknowledged by the Imperial Government.  Actual  44 occupation, on the other hand, would be respected.  45 This was a Minute in the context of the possible  46 creation of a Crown Colony at Red River which would  47 entail terminating the Hudson's Bay Company's right to 27546  Submissions by Mr. Goldie  1 the soil.  I say that Mr. Justice Mahoney did not have  2 any of that material before him.  3 What does appear, however, to have influenced Mr.  4 Justice Mahoney is the general assertion, echoed in  5 the case at bar, that the proprietors of those other  6 English colonies in North America:  7  8 "...  generally, if not invariably, effected the  9 extinguishment of aboriginal rights by cession  10 or sword.  They did not rely on the incidents  11 of a title peculiar to English law as  12 displacing whatever rights the aborigines  13 enjoyed under their own laws."  14  15 Now, in my submission, my lord, what happened before  16 and after the American revolution has only marginal  17 importance as precedent or relevance to the issues in  18 the case at bar.  19 The salient relevant feature of the  20 pre-revolutionary experience of the 13 colonies was  21 the multiple role of the Indian nations and tribes in  22 the century and a half preceding the outbreak of the  23 American revolution.  And, my lord, I say this can be  24 taken from the evidence which the plaintiffs have  25 introduced.  In that period the Indians were  26 variously:  27  28 (a)   Allies of the English in the wars with the  29 French;  30 (b)   Allies of the French in the wars with the  31 English.  32 (c)   At war with one another for any one of a  33 number of reasons including control  34 of trade with the traders and colonists;  35 (d)   Trading with one or both of the English and  36 French traders and colonists;  37 (e)   At war with the Colonies over encroachment  38 of settlers.  39 (f)   Migrants as a result of wars whether with  40 other Indians, as allies of the French or as  41 allies of the English, or as a result  42 of the Colonial frontier wars."  43  44 That experience determined the manner which  45 Indians were treated in the United States before and  46 after the Revolution.  The dominant feature of  47 American history affecting and affected by this 27547  Submissions by Mr. Goldie  1 experience was the aggressive expansion westward of  2 colonial and post-colonial settlement, as distinct  3 from trade.  4 Now, my lord, if I may interject here, your  5 lordship has heard extensive submissions made by my  6 friend, Mr. Jackson, on the relationship between  7 colonial settlers and the Indian inhabitants of the  8 eastern part of the continent between 1609 and 1763.  9 I refer particularly to volume 3 of the plaintiffs'  10 final argument, pages 23 to 59.  Now, I understand the  11 purpose of this is to support the fundamental  12 principles which Mr. Jackson set out at page 21, and  13 which I have earlier examined, of volume 3 of the  14 final argument.  And I think the heart of those  15 principles may be taken as the proposition that lands  16 could only be legally acquired by Indian consent, and  17 subsidiary to that, a recognition of self-government  18 by the colonial authorities.  As I understand the  19 argument, it is these which are said to have ripened  20 into principles of common law.  In support of that,  21 extensive references were made to the publication of  22 early American Indian documents, Exhibit 1244.  And my  23 friend, Mr. Jackson, noted at transcript 316, page  24 23720, lines 29 to 45 that this publication was only  25 recently published and brought to the attention of  26 scholars, many documents, for the first time.  27 Now, your lordship directed to Mr. Willms for my  28 attention the question of what material could be found  29 relating to colonial law as of 1763, and I am in the  30 process of gathering that.  The comment I make here is  31 that the treaties and agreements, in my submission,  32 exactly illustrate the points I make in my summary,  33 the fact of warfare, of every description amongst the  34 Indians themselves with the settlers as incidental to  35 the French and British clashes, they illustrate  36 purchases for protection, and they illustrate the  37 ability of the Indian people, primarily the Six  38 Nations, to determine on courses which reflected their  39 own interest as seen from time to time.  40 One of the first references that my friend made in  41 Exhibit 1244 was to tab 1, which is the introduction  42 to the early American Indian documents.  And my  43 friend, Mr. Jackson, laid some stress on the fact that  44 the first treaty appears to have been made in around  45 1629.  Now, the first paragraph of this introduction  46 reads as follows:  47 2754?  Submissions by Mr. Goldie  1 "Treatymaking or negotiation with the native  2 inhabitants of Pennsylvania and Delaware began  3 almost as soon as the first white men arrived  4 on the shores of Delaware Bay and River to  5 explore, trade or settle.  Lest hostility be  6 aroused, it was necessary to reach  7 understandings about permission to come among  8 the Indians, about conditions of trade, or  9 about the acquisition of land."  10  11 And then the learned author goes on to talk about such  12 an understanding being reached by some Dutch  13 nationals, and this was referred to by my friend, Mr.  14 Jackson.  And then I want to read from page 2 about  15 what happened after that treaty.  And I quote:  16  17 "Although the little settlement soon had an air  18 of permanence, it lasted less than a year.  The  19 Delawares seem generally to have been of a  20 peaceful nature, but something untoward  21 happened to arouse their suspicion and anger.  22 Without warning, they surprised and killed all  23 the settlers, and destroyed the buildings.  In  24 December, 1632, when David Peter Pieterzoon de  25 Vries arrived in Delaware Bay at the head of a  26 second expedition, he found nothing but ruins  27 at Swanendale."  28  29 And then that introduction concludes with the -- an  30 observation on the effect of the Swedes taking over  31 the interests of the Dutch before that, and I refer to  32 page 3 in the second paragraph, when the rivalry  33 between the Dutch and the Swedish was at its height:  34  35 "The coming of Johan Printz as Governor of New  36 Sweden in 1643 and of Peter Stuyvesant as  37 Director-General of New Netherland in 1647 set  38 the stage for more aggressive action, with each  39 side endeavouring to dislodge the other, and  40 making use of ostensible deeds from the Indians  41 to support the claims."  42  43 Your lordship will appreciate that they were using  44 pieces of paper obtained from the Indians to support  45 their claims to land.  And then finally on page 4,  46 after the Swedes and the Dutch got together -- I  47 shouldn't say got together -- the Swedes eventually -- 27549  Submissions by Mr. Goldie  1 it was the other way around, I'm sorry, that  2 eventually the Dutch forced the surrender of New  3 Sweden, but on page 4 the learned author states:  4  5 "In response, the Swedes held a great treaty  6 with ten Delaware sachems at the new capital of  7 New Sweden on Tinicum Island, to renew  8 friendships and to ask that the previous  9 treaties and deeds to the Swedes be held  10 inviolable.  This the chiefs agreed to, without  11 dissent; and some of the chiefs who had land to  12 the Dutch now deeded it to the Swedes."  13  14 A very considerable emphasis was placed on the  15 relations with the Iroquois, culminating in the breach  16 of the covenant chain treaties, when in the eyes of  17 the Iroquois the British had failed to provide them  18 with sufficient protection.  19 I'm going to refer to an Exhibit 1248-5, my lord,  20 which is a dissertation prepared by a Mr. J.D. Hurley,  21 H-U-R-L-E-Y, entitled "Children Or Brethren:  22 Aboriginal Rights In Colonial Irquoia".  This is dated  23 1985.  Now, as I say, my friends rely upon Mr.  24 Hurley's dissertation, and I want to put in  25 perspective just who the Iroquois were in the sense of  26 their importance.  27 In his introduction -- well, I assume he's now Dr.  28 Hurley -- Dr. Hurley stated:  29  30 "While the Constitution Act, 1982 entrenches  31 aboriginal rights in Canada, it does not define  32 them."  33  34 And then he says he's going to focus upon a single  35 test case in relations between the Iroquois  36 confederacy, the French and the English during the  37 period 1609 to 1701.  Now, reading directly from his  38 work:  39  40 "The Iroquois confederacy furnishes an obvious  41 candidate for scrutiny since, as a major  42 military power, strategically situated between  43 rival English and French colonies, it played an  44 important role in shaping the colonial history  45 of North America.  Relations with the Iroquois  46 were critical to the security and prosperity  47 both of New York and of New France; they 27550  Submissions by Mr. Goldie  1 therefore constituted an object of particular  2 attention for the authorities in both Colonies.  3 Negotiations and agreements between the  4 Iroquois and Europeans respecting war and  5 peace, military alliances, neutrality, trade  6 and land were carefully recorded.  The records  7 so compiled provided, in large measure, the  8 basis upon which England and France  9 subsequently formulated, not only their general  10 Indian policy, but also their competing claims  11 of territorial sovereignty in North America."  12  13 And, my lord, I go to page 26 to --  14 THE COURT:  What page was that passage you just read?  15 MR. GOLDIE:  That was page 1 and 2, the introduction of Hurley's  16 dissertation.  And at pages 26 to 28 I'm referring to  17 those to show how widespread the influence of the  18 Iroquois was and how they got that way.  And Dr.  19 Hurley talks first of Frontier Iroquoia.  He says:  20  21 "In historic times, a buffer zone appears to  22 have existed beyond the perimeter of aboriginal  23 Iroquoia separating it from the domains of  24 neighbouring peoples.  This zone, which may be  25 called frontier Iroquoia, was utilized by the  26 Iroquois for subsistence activities like  27 hunting and fishing.  Unlike aboriginal  28 Iroquoia, however, it was not an area of  29 exclusive Iroquois utilization; its resources  30 were also exploited by adjacent Indian  31 nations."  32  33 He says:  34  35 "The area between the Adirondack Mountains and  36 the St. Lawrence River may have constituted  37 such a frontier zone."  38  39 Then he describes Conquered Iroquoia:  40  41 "Shortly after the arrival of the Europeans, the  42 territory subject to the Iroquois control began  43 to expand as a result of conquests of  44 contiguous Indian nations.  This enlarged  45 territory, from which the Iroquois evicted the  46 original inhabitants in order to assure  47 themselves exclusive control and resource 27551  Submissions by Mr. Goldie  1 utilization, particularly of beaver, may be  2 called conquered Iroquoia.  Aboriginal and  3 conquered Iroquoia are distinguished to  4 indicate that the latter territory became  5 Iroquois domain not in "time immemorial", but  6 in historic times, after contact had been  7 established between the Iroquois and the  8 Europeans."  9  10 And then he goes to list the territorial conquests of  11 the Iroquois as against other Indian nations, and he  12 says:  13  14 "Starting around 1640, the Iroquois began to  15 acquire firearms in large numbers from Dutch  16 and English traders.  This technological  17 advantage facilitated the aggressive course of  18 territorial expansionism pursued by the  19 Iroquois over the succeeding two decades.  20 Between 1642 and 1649, the Iroquois conquered  21 and dispersed the Huron Confederacy, thereby  22 acquiring an area extending from the north  23 shore of Lake Ontario to northwest around Lake  24 Simcoe to Georgian Bay.  During the winter of  25 1649-50, the Iroquois attacked and expelled" --  26  27 Another group, and so on.  He goes on to list these,  28 and then he talks about Protected Iroquoia:  29  30 "Disparities of military strength between the  31 Iroquois and neighbouring Indian nations did  32 not necessarily result in Iroquois eradication  33 or expulsion of the latter from their  34 territories.  In some instances, the Iroquois  35 were content to allow weaker nations to remain  36 in possession of their lands upon recognition  37 of Iroquois suzerainty or 'protection'."  38  39 And then he goes on to describe what that meant.  And  40 by the close of the 19th -- sorry:  41  42 "By the close of the seventeenth century, the  43 Iroquois may have dominated, in differing  44 degrees, all the principal Indian nations  45 occupying the territories which are now  46 embraced in the states of New York, Delaware,  47 Maryland, New Jersey, Pennsylvania, the 27552  Submissions by Mr. Goldie  1 northern and western parts of Virginia,  2 Kentucky, Northern Tennessee, Illinois,  3 Indiana, Michigan, a portion of the New England  4 States, and the principal part of Upper Canada.  5 This territory, which the Iroquois held in at  6 least nominal subjection, may be called  7 protected Iroquoia."  8  9 I bring that to your lordship's attention so that  10 the importance of the relations with the Iroquois and  11 with the Confederacy of the Six Nations can be put in  12 proper perspective.  And of course there is nothing  13 comparable to that in British Columbia or indeed in  14 Canada.  15 I say in paragraph 34 on page 19 of my summary,  16 there was no counterpart to this experience --  17 referring to the experience arising out of the  18 aggressive expansion westward of colonial and  19 post-colonial settlement in what is now the United  20 States -- there was no counterpart to this experience  21 in what is now Canada.  The wars between the French  22 and the English and the wars between the Indians  23 themselves had effect largely confined to what became  24 Quebec after the Treaty of Paris and which was,  25 immediately prior to Confederation, the Province of  26 Canada.  The aftermath of the American Revolution and  27 of the War of 1812 had little impact north of the 49th  28 parallel and west of the Great Lakes comparable in any  29 way to what continued to take place in the United  30 States as it expanded westward.  In my submission, it  31 is misleading in the extreme to ignore the history of  32 what is now Canada and in particular British Columbia  33 in favour of the pre- and post-revolutionary  34 experience of the American colonies.  35 Frederick Merk, the leading American historian of  36 pre- and post-colonial expansion in the United States,  37 demonstrates, in my submission, in his "History of the  38 Westward Movement", that a universal feature of the  39 American frontier as it was advanced was land  40 speculation on a large scale.  At pages 80 to 83 of  41 his text he summarizes one example, that of  42 Transylvania, of the influence of land speculation on  43 law.  Elsewhere in his book he credits the presence of  44 some 25,000 American settlers west of the Appalachians  45 as having a decisive effect on the negotiations for  46 the conclusion of the American revolution.  My lord,  47 I'm not introducing this for the truth of the matter 27553  Submissions by Mr. Goldie  1 stated, I'm introducing this as an endeavour to place  2 my friend's extensive references to the treaties and  3 the eastern part of the continent in their proper  4 perspective.  5 MR. RUSH:  This is not an exhibit, my lord.  6 THE COURT:  No.  7 MR. GOLDIE:  No.  Of course the presence of American settlers  8 west of the Appalachians was all in defiance of the  9 Royal Proclamation.  10 Now, in -- I put in the book the pages to which I  11 have referred, and I'll try and --  12 THE COURT:  From Professor Merk's book?  13 MR. GOLDIE:  Yes.  The first page under the — facing the title  14 page is who he was.  Now, I wish to comment briefly on  15 the pages 80 to 83 to illustrate the observation or  16 the submission I make of the importance of land  17 speculation and the aggressive westward movement in  18 the United States.  19 MR. RUSH:  Sorry.  In my copy I don't have anything after the  20 face page.  21 THE COURT:  Nor do I.  22 MR. RUSH:  That indicates who he was.  23 MR. GOLDIE:  Sorry.  I will have copies made of that, that being  24 the page with Professor Merk's background on it.  But  25 turning to page 80, my lord, your lordship has heard  26 from both Dr. Greenwood, Mr. Morrison, and I think in  27 the course of argument the attempt to set up the  28 settlement known as Vandalia, and that was -- that was  29 opposed by the Board of Trade, as I referred to in the  30 Royal Proclamation submission, and it never got off  31 the grounds because it -- the American Revolution  32 intervened.  After concluding his comment with respect  33 to that, he says midway down the page:  34  35 "After much backstairs diplomacy the project won  36 the approval of the British Privy Council in  37 1772.  But it encountered legal objections  38 thereafter.  Before these could be removed the  39 shot was fired at Concord, Massachusetts,  40 marking the outbreak of the American  41 Revolution."  42  43 And then he goes on to one that is the Transylvania  44 project, which is of some considerable interest:  45  46 "While that project was slowly maturing, another  47 was started which was also directed partly to 27554  Submissions by Mr. Goldie  1 Kentucky, partly to Tennessee.  This was the  2 Transylvania project, a North Carolina  3 enterprise.  Its leading spirit was Judge  4 Richard Henderson.  He had received reports  5 from Daniel Boone extolling the beauties of the  6 the Blue Grass region.  He organized a company  7 in 1774 and the next year bought the immense  8 tract marked 'Transylvania' on the map from the  9 Cherokee Indians."  10  11 Your lordship may be able to make it out on the map on  12 the next page, but to say that it was immense is  13 understating it.  His purchase was from the Cherokees:  14  15 "The price given the Cherokee was 10,000 pounds.  16 This seems to have been a stock price for  17 principalities, only this was paid in Indian  18 trade goods, worth a good deal less.  The  19 purchase was in direct violation of the  20 Proclamation of 1736 and the laws of Virgina  21 and of North Carolina.  It was contrary not  22 only to law but to the prevailing theory of  23 acquisition of land in the wilderness.  24 The theory was that title to land in the  25 wilderness was held initially by the Crown and  26 could not be passed on to private parties only  27 by the Crown.  The Crown was owner by virtue of  28 the fact that in its name the wilderness was  29 discovered or conquered.  Any Christian prince  30 was the owner of land in a wilderness  31 discovered or conquered in his name, and  32 occupied only by heathen.  33 The heathen on the land ceased to be the  34 owners.  They were, after the Christian prince  35 had discovered or conquered it, merely  36 occupants of the land.  If at any time  37 thereafter they made a cession by treaty to a  38 representative of the Christian prince, all  39 they ceded was the right to occupancy of the  40 land.  41 This theory, if rough on Indians, was the  42 only one that was workable.  Any other would  43 have led to anarchy in land titles.  Indians  44 did not understand European concepts of land  45 title.  They could be persuaded to sell the  46 land they occupied as many times and to as many  47 different whites as would offer kegs of rum. 27555  Submissions by Mr. Goldie  1 The theory that only the Crown could give  2 valid title to wilderness land was not only  3 British; it was the theory of every European  4 colonizing power in America.  It was the theory  5 of the American government after independence  6 was won.  It was upheld by the Supreme Court in  7 the case of Johnson v. Mcintosh in 1823.  The  8 court ruled that the British Crown acquired  9 title to the wilderness by discovery or  10 conquest and that it was from the Crown that  11 title passed to the American states or to the  12 federal government when independence was  13 achieved.  When an Indian tribe made a cession  14 to the federal government by treaty, all it  15 gave up was a right of occupancy.  In  16 purchasing Transylvania from an Indian tribe  17 Henderson was acting on a different theory,  18 that a valid title could be taken directly from  19 Indians without any consent of the Crown."  20  21 And then he says:  22  23 "A theory so out of accord with accepted views  24 and law needed a legal crutch to bolster it.  25 The crutch was a lawyer's informal opinion  26 given in London in 1757, in reply to a request  27 from the East India Company."  28  29 Then he goes on to talk about that opinion, which  30 incidentally, my lord, is referred to by Chief Justice  31 Marshall.  And the paragraph midway down the page:  32  33 "During the period 1773-75, when Vandalia and  34 other speculative enterprises in western land  35 development were on foot in America - and  36 British authorities delayed confirmation of  37 such projects - a garbled version of the 1757  38 Camden-Yorke reply to the East India Company  39 gained currency.  Inference was that Indian  40 tribes in America had the right to transmit  41 title to land without reference to the Crown.  42 This version put uncivilized tribes of North  43 America on the level of the civilized princes  44 of India.  It was without government sanction  45 in England or America.  46 Henderson learned of the later version of  47 the Camden-Yorke opinion.  He seized upon it to 27556  Submissions by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  MR. GOLDIE  THE COURT:  MR. GOLDIE  bolster the purchase he wished to make from the  Cherokee Indians.  This was a typical lawyer's  trick to gain the color of law for an illegal  transaction."  I'm not so sure it was typical.  Or a trick.  Or a trick.  I suppose or necessarily true.  "The ploy did not impress the Crown  representatives in either Virginia or North  Carlina.  They at once denounced the purchase  as illegal, and the Revolutionary state  governments soon afterward took the same  position."  Your lordship will appreciate that this speculative  land venture spanned the period of the Revolution  and -- but it came to fruition, or at least such  fruition as it did come to, after the revolution:  "Despite this stand, these States later  maintained that the Cherokee had abandoned  their rights to the Transylvania area.  Henderson refused to recognize the denunciation  of his title by the two governments.  He  appealed from their verdict to the Continental  Congress.  Throughout the War of the American  Revolution he beseeched the Congress to  validate his title, but never succeeded.  His claim to ownership of Transylvania and  his attempt to sell land there to settlers was  ridiculed by most pioneers in Kentucky. It was  scoffed at especially by settlers in  Harrodsburg led by George Rogers Clark.  In the  end the project collapsed, and Henderson left  Kentucky in discouragement, complaining that  the Kentuckians were a set of scoundrels who  had no faith in God or fear of the devil.  He  eventually obtained from the legislature of  Virginia a gift of 200,000 acres of land, to  compensate him for his expenditures.  He got a  similar gift from North Carolina.  The Transylvania project was a  characteristic frontier land speculation.  It  illustrates the ceaseless search by land 27557  Submissions by Mr. Goldie  1 speculators for ways and means of circumventing  2 the land law.  It differed from the  3 circumvention by other speculators only that it  4 was more wholesale and barefaced.  The  5 Transylvania project was typical also of the  6 persistence with which speculators carried  7 appeals from one government authority to  8 another - from colonial and state governments  9 to the Continental Congress in this case."  10  11 And then there's a final comment:  12  13 "Henderson was defeated, if the generous  14 settlements with him can be called a defeat,  15 because he was rash enough to make a frontal  16 assault on land law."  17  18 I noted at page 21 that Professor Merk refers to the  19 celebrated case of Johnson and Mcintosh, where on a  20 stated case in which the parties agreed that the  21 territory in question was at the time of discovery of  22 the North American continent and at all relevant times  23 thereafter.  24 My lord, this is taken from the case stated --  25 it's not from the judgment, it's from the case stated  26 for the opinion of the court.  Johnson and Mcintosh is  27 found in volume 11 of my friend's documents, tab 22.  2 8    THE COURT:  Do I need —  29 MR. GOLDIE:  And I'm quoting from the Lawyer's Edition version,  30 pagination 681.  The first page reference is the first  31 page of the case, my lord, and in the first paragraph  32 the nature of the action is described as one of:  33  34 "... ejectment for lands in the state and  35 district of Illinois, claimed by the plaintiffs  36 under a purchase and conveyance from the  37 Piankeshaw Indians, and by the defendant under  38 a grant from the United States.  It came up on  39 a case stated, upon which there was a judgment  40 below for the defendant.  The case stated set  41 out the following facts."  42  43 And then going down to the last paragraph, number --  44 the third:  45  46 "That at the time of granting these letters  47 patent, and of the discovery of the continent 2755?  Submissions by Mr. Goldie  1 of North America by the Europeans, and during  2 the whole intermediate time, the whole of the  3 territory, in the letters patent described,  4 except a small district on James River, where a  5 settlement of Europeans had previously been  6 made, was held, occupied and possessed, in full  7 sovereignty, by various independent tribes, or  8 nations of Indians, who were the sovereigns of  9 their respective portions of the territory, and  10 the absolute owners and proprietors of the  11 soil, and who neither acknowledge nor owed any  12 allegiance or obedience to any European  13 sovereign or state whatever; and that in making  14 settlements within this territory, and in all  15 the other parts of North America, where  16 settlements were made, under the authority of  17 the English government, or by its subjects, the  18 right of soil was previously obtained by  19 purchase or conquest, from the particular  20 Indian tribe or nation by which the soil was  21 claimed or held; or the consent of such tribe  22 or nation was secured."  23  24 Now, it was, I say, in the interests of both parties  25 to this action -- one claiming under purchases and  26 conveyances from the Indians made in 1773 and 1775 and  27 the other under a grant from the United States -- to  28 put the Indian title at its highest and most expansive  29 terms -- both in respect of the nature of the interest  30 and of its territorial extent. It was in the interest  31 of the Indians obviously because they were claiming  32 directly.  It was in the interests of the United  33 States.  The Indians in question had concluded a  34 treaty of peace with the United States after the  35 Revolution, and obviously they -- the United States  36 wanted to rely upon that rather than upon any purchase  37 from the Indians by the United States.  Upon the  38 premise -- I'm back on page 22 of my summary, my lord.  39 Upon the premise therefore that Indian sovereignty was  40 absolute and widespread, the Court held that the  41 Indian title was not the root of title for both  42 contestants.  It traced the title of the United States  43 through the Crown from discovery to possession as one  44 that was developed by European nations in their  45 dealings with one another.  As to the Indian peoples,  46 the court said at Lawyer's Edition page 688, it's the  47 first column, my lord. 27559  Submissions by Mr. Goldie  1 THE COURT:  At the start of —  2 MR. GOLDIE:  Sorry, it starts at the bottom of the page, the  3 right-hand column.  And it reads:  4  5 "In the establishment of these relations, the  6 rights" --  7 That is to say the relations between the discovery of  8 the natives:  9  10 "-- the rights of the original inhabitants were,  11 in no instance, entirely disregarded; but were  12 necessarily, to a considerable extent,  13 impaired.  They were admitted to be the  14 rightful occupants of the soil, with a legal,  15 as well as just claim to retain possession of  16 it, and to use it according to their own  17 discretion; but their rights to complete  18 sovereignty, as independent nations, were  19 necessarily diminished and the power to dispose  20 of the soil at their own will to whomsoever  21 they pleased, was denied by the original  22 fundamental principle that discovery gave  23 exclusive title to those who made it."  24  25 There is no authority quoted by the Chief Justice for  26 that, and in my submission it is a statement of  27 expediency.  28 The power of the European to grant good title  29 while the Indian peoples were in possession and  30 subject only to their actual occupancy was universally  31 acknowledged.  With respect to grants made prior to  32 the Revolution without purchase or consent of the  33 Indians the Court said, and I'm now referring to  34 page -- at Lawyer's Edition page 690, and I'm going to  35 read a little more than what is set out in my -- in my  36 text of my summary, and beginning on the first column  37 midway down the page, the paragraph beginning with the  38 words "Thus has our whole country".  39 THE COURT:  On the left-hand side?  40 MR. GOLDIE:  Left-hand side, yes.  41 THE COURT:  About half-way down?  42 MR. GOLDIE:  Yes.  43 THE COURT:  Middle of the paragraph?  44 MR. GOLDIE:  No.  It's the beginning of the paragraph.  "Thus  45 has our whole country".  It's six paragraphs, second  46 from the bottom.  4 7 THE COURT:  Yes. 27560  Submissions by Mr. Goldie  1 MR. GOLDIE:  2 "Thus has our whole country been granted by the  3 Crown while in the occupation of the Indians.  4 These grants purport to convey the soil as well  5 as the right of dominion to the grantees.  In  6 those governments which were denominated royal,  7 where the right to the soil was not vested in  8 individuals, but remained in the Crown, or was  9 vested in the colonial government, the king  10 claimed and exercised the right of granting  11 lands, and of dismembering the government at  12 his will.  The grants made out of the two  13 original colonies, after the resumption of  14 their charters by the crown, are examples of  15 this.  The governments of New England, New  16 York, New Jersey, Pennsylvania, Maryland, and a  17 part of Carolina, were thus created.  In all of  18 them, the soil, at the time the grants were  19 made, was occupied by the Indians.  Yet almost  20 every title within those governments is  21 dependent on those grants.  In some instances,  22 the soil was conveyed by the crown  23 unaccompanied by the powers of government, as  24 in the case of the northern neck of Virginia.  25 It has never been objected to this or any other  26 similar grant, that the title as well as  27 possession was in the Indians when it was made,  28 and that it passed nothing on that account."  29  30 And then, as to the situation which prevailed after  31 the American Revolution, the Chief Justice said at  32 Lawyer's Edition page 691, and this is in the  33 right-hand column, first paragraph, about two-thirds  34 of the way down that paragraph:  35  36 "It has never been doubted, that either the  37 United States, or the several states, had a  38 clear title to all the lands within the  39 boundary lines described in the treaty, subject  40 only to the Indian right of occupancy, and that  41 the exclusive power to extinguish that right  42 was vested in that government which might  43 constitutionally exercise it."  44  45 The treaty there being the treaty of peace between  46 Great Britain and the United States.  And then at page  47 40, paragraph 40, I set out the provision that was 27561  Submissions by Mr. Goldie  1 cited by Mr. Justice Judson in Calder at page 321, and  2 it is the left-hand column, and I'm going to read what  3 precedes the quote in the summary.  It's the  4 paragraph -- second-to-last paragraph beginning with  5 the words "The power now possessed by the government".  6 THE COURT:  What page?  7 MR. GOLDIE:  692, Lawyer's Edition.  8 THE COURT:  I seem to jump from —  9 MR. GOLDIE:  It's the —  10 THE COURT:  Well, the printing is so bad I can't read it, but  11 how does 692 -- what's the first words of your 692?  12 MR. GOLDIE:  "Of the soil and concluded with a stipulation".  13 THE COURT:  All right, yes, I have it.  14 MR. GOLDIE:  If your lordship would go down to the  15 second-to-last paragraph, "The power now possessed".  16 THE COURT:  Yes.  17 MR. GOLDIE:  18  19 "The power now possessed by the government of  20 the United States to grant lands, resided,  21 while we were colonies, in the crown, or its  22 grantees.  The validity of the titles given by  23 either has never been questioned in our courts.  24 It has been exercised uniformly over territory  25 in possession of the Indians.  The existence of  26 this power must negative the existence of any  27 right which may conflict with and control it.  28 An absolute title to lands that cannot exist,  29 at the same time, in different persons, or in  30 different governments.  An absolute must be an  31 exclusive title, or at least a title which  32 excludes all others not compatible with it.  33 All our institutions recognize the absolute  34 title of the crown to extinguish that right.  35 This is incompatible with an absolute and  36 complete in the Indians."  37  38 I pause there to emphasize the paragraph I read from  39 the stated case, by which the parties agreed that  40 the -- that the Indian nations were absolute owners  41 and proprietors of the soil.  42 THE COURT:  I'm not sure what you're intending to convey by  43 that.  44 MR. GOLDIE:  Well, what —  45 THE COURT:  A conflict or because they were the absolute  46 proprietors of the soil, that this is even a stronger  47 statement than it otherwise might be. 27562  Submissions by Mr. Goldie  1 MR. GOLDIE:  It's a stronger statement.  The context in which  2 he's making the statement is the agreed statement of  3 facts, that the Indian grantors of this particular  4 land were acknowledged by both parties to have no  5 allegiance to the United States to have been the  6 absolute owners of the soil, and they were entitled to  7 use the land according to their own discretion.  8 Now, the Chief Justice therefore set out to  9 destroy the proposition that under those factual  10 circumstances the Indian peoples could pass any legal  11 title.  Now -- and then on the following page the  12 Chief Justice set out what Professor Merk  13 characterized as "the only one" -- that is to say the  14 only one principle that was workable.  And the Chief  15 Justice said, and this too has been read to your  16 lordship, but I'm going to emphasize it again:  17  18 "However extravagant the pretension of  19 converting the discovery of an inhabited  20 country into conquest may appear, if the  21 principle has been asserted in the first  22 instance, and afterwards sustained; if a  23 country has been acquired and held under it; if  24 the property of the great mass of the community  25 originates in it, it becomes the law of the  26 land, and cannot be questioned.  So, too, with  27 respect to the concommitant principle that the  28 Indian inhabitants are to be considered merely  29 as occupants, to be protected, indeed, while in  30 peace, in the possession of their lands, but to  31 be deemed incapable of transferring the  32 absolute title to others.  However this  33 restriction may be opposed to natural right and  34 to the usages of civilized nations, yet, if it  35 be indispensable to that system under which the  36 country has been settled, and be adapted to the  37 actual condition of the two people, it may,  38 perhaps, be supported by reason, and certainly  39 cannot be rejected by courts of justice."  40  41 And, my lord, when I was discussing the Royal  42 Proclamation last week, I referred to the Chief  43 Justice Marshall's discussion of the Royal  44 Proclamation and his characterization of it as arising  45 out of the peculiar situation of the Indians.  And I'm  46 now quoting from his judgment at page 694 as set out  47 in the text of my summary, but he said the Royal 27563  Submissions by Mr. Goldie  1 Proclamation arose out of the peculiar situation of  2 the Indians, that is to say the Indians in question,  3 in my submission:  4  5 "...necessarily considered in some respects, as  6 dependent, and in some respects as a distinct  7 people occupying a country claimed by Great  8 Britain, and yet too powerful and brave not to  9 be dreaded as formidable enemies required that  10 means should be adopted for the preservation of  11 peace and that their friendship should be  12 secured by quieting their alarms for their  13 property.  This was to be effected by  14 restraining the encroachment of the whites; and  15 the power to do this was never, we believe,  16 denied by the colonies to the crown."  17  18 Now, when I drew that to your lordship's attention  19 last week, I also noted the context in which it arose,  20 which was a claim by the plaintiffs that the Royal  21 Proclamation was beyond the powers of the king.  22 The alleged opinion by two law officers of the  23 Crown with respect to the right of East Indian Princes  24 to grant a title without "a patent emanating from the  25 Crown" was dismissed as entirely inapplicable to  26 America.  My lord, that was the -- that was what was  27 referred to by Professor Merk, at least I think that's  28 what it was referred to.  Professor Merk refers to  29 Camden-Yorke, but at page 695 of the report, and I  30 can't make out the page number at the bottom of the  31 page, but it's page IV-43 of my yellow book, or the  32 beginning words, if your lordship is looking at the  33 report in my friend's authorities, the beginning words  34 are "that of Versailles, during the controversy  35 between the two nations".  36 THE COURT:  Yes.  I see that.  37 MR. GOLDIE:  The first complete paragraph:  38  39 "The opinion of the Attorney and  40 Solicitor-General Pratt and Yorke, have been  41 adduced to prove, that in the opinion of those  42 great law officers, the Indian grant could  43 convey a title to the soil without a patent  44 emanating from the Crown.  The opinion of those  45 persons would certainly be of great authority  46 on such a question, and we were not a little  47 surprised, when it was read, at the doctrine it 27564  Submissions by Mr. Goldie  1 seemed to advance.  An opinion so contrary to  2 the whole practice of the Crown, and to the  3 uniform opinions given on all other occasions  4 by its great law officers, ought to be very  5 explicit, and accompanied by the circumstances  6 under which it was given."  7  8 And then he goes into the background at some length  9 and concludes that it was not applicable.  10 My lord, Johnson and Mcintosh, I'm back at  11 paragraph 44 of my summary, has influenced the  12 judgments of the Canadian courts.  It's influence in  13 this respect in St. Catherine's Milling was noted by  14 Mr. Justice Judson in Calder, and the judgment of  15 Chancellor Boyd, which was quoted by Begbie, C.J. in  16 1886, was also called in aid, Chancellor Boyd's  17 conclusion, at which Chief Justice Begbie adopted that  18 the Indian peoples did not have a proprietary interest  19 in land.  20 Now, I suggest that the American view --  21 THE COURT:  I think before you go to that we'll take a bit of an  22 adjournment.  23 MR. GOLDIE:  Thank you.  24 THE REGISTRAR:  Order in court.  Court stands adjourned.  25  26 (MORNING ADJOURNMENT TAKEN AT 11:15)  27  28 I hereby certify the foregoing to be  29 a true and accurate transcript of the  30 proceedings herein transcribed to the  31 best of my skill and ability  32  33  34  35    36 Graham D. Parker  37 Official Reporter  38 United Reporting Service Ltd.  39  40  41  42  43  44  45  46  47 27565  Submissions by Mr. Goldie  1 MAY 28, 1990  2 VANCOUVER, B.C.  3  4 THE REGISTRAR:  Order in court.  5 THE COURT:  Before you resume, Mr. Goldie, may I mention the  6 subject of diskettes, and inform counsel I am going to  7 Halifax on Sunday, and I'll have about eight  8 uninterrupted hours of time to play with my computer,  9 and if anyone has any up-to-date diskettes, I will  10 work from it, and otherwise I will take my chances  11 from working with out-of-date diskettes.  So if  12 anything is up-to-date I'll appreciate it.  13 MR. GOLDIE:  I'll look into it, my lord.  The word "diskette"  14 always throws me off.  I keep thinking of a miniature  15 disco place.  16 THE COURT:  I think of that while I am using the diskettes.  17 MR. RUSH:  Perhaps I can mention, my lord, that we've  18 encountered a few technical difficulties, in terms of  19 the equipment we have been using in Smithers and our  20 local equipment, and that's led to some delays, but it  21 looks like that's been untangled.  We are hoping to  22 deliver our remaining volumes of diskettes.  23 THE COURT:  All right.  Thank you.  24 MR. GOLDIE:  My lord, may I hand up the page I intended to place  25 in the summary.  2 6 THE COURT:  Oh, yes.  27 MR. GOLDIE:  That might conveniently follow the title page of  28 his work, which in turn follows page 20 of the section  29 that we are in.  3 0 THE COURT:  Thank you.  31 MR. GOLDIE:  I am at page 26 of the summary, my lord.  32 I endeavour to summarize the American view as  33 expressed in Johnson and Mcintosh.  First it treated  34 actual occupancy as a legal interest recognized, I  35 think the Chief Justice's word is "admitted" by  36 European nations.  37 Second, that as amongst these nations discovery  38 was the equivalent of conquest and that the title of  39 the European nation was absolute subject only to  40 Indian right of occupancy.  41 Third, the sovereign power displacing the Indians  42 possessed the exclusive right to extinguish the right  43 of occupancy.  44 Fourth, extinguishment can take place with or  45 without purchase and consent.  46 Finally, the Proclamation of 1763 was a course of  47 expediency, adopted to preserve peace and secure 27566  Submissions by Mr. Goldie  1 friendship and represented by a policy of confinement  2 of the whites.  3 THE COURT:  Well, I'm a little troubled by your 'D'.  It seems  4 to me there were passages in Johnson and Mcintosh that  5 don't seem to accord with 'D'.  Will you give me some  6 assistance in that regard?  7 MR. GOLDIE:  Yes, I can.  Perhaps I might do that right after  8 lunch.  9 THE COURT:  Certainly.  10 MR. GOLDIE:  I have the source of that somewhere, but I can't  11 put my hand on it.  12 In paragraph 46 I say it was this course of  13 expediency which caused George Washington to recommend  14 treaty rather than war in facilitating the post  15 colonial course of westward expansion.  In his letter,  16 said to outline principles that were to form the basis  17 for the Indian policy of the Continental Congress,  18 Washington said this.  Now, my lord, you may recall  19 that this was introduced by Dr. Lane, and the extract  20 under tab 4-46 is dated September 7th, 1783, and the  21 introduction presumably by the learned author reads as  22 follows:  23  24 "At the end of the Revolutionary War the new  25 nation faced Indian problems of considerable  26 magnitude, for the Indian nations at war with  27 the United States had no part in the Peace of  28 Paris.  In a letter to James Duane, George  29 Washington outlined principles that were to  30 form the basis for the Indian policy of the  31 Continental Congress."  32  33 And then General Washington commences his letter  34 with the words:  35  36 "I have carefully perused the papers which you  37 have put into my hands relative to Indian  38 Affairs ..."  39  40 And he then concludes his observations by the  41 extract by the comments which I have set out in my  42 summary, and which are found in the last page in the  43 right-hand column, being the last paragraph.  He says:  44  45  46 "At first view, it may seem a little extraneous,  47 when I am called upon to give an opinion upon 27567  Submissions by Mr. Goldie  1 the terms of a peace proper to be made with the  2 Indians that I should go into the formation of  3 new States; but the settlement of the western  4 country and making a peace with the Indians are  5 so analagous that there can be no definition of  6 the one without involving considerations of the  7 other, for I repeat it, again, and I am clear  8 in my opinion, that policy and economy point  9 very strongly to the expediency of being upon  10 good terms with the Indians, and the propriety  11 of purchasing their lands in preference to  12 attempting to drive them by force of arms out  13 of their country; which as we have already  14 experienced is like driving the Wild Beasts of  15 the Forest which will return as soon as the  16 pursuit is at an end and fall perhaps on those  17 that are left there; when the gradual extension  18 of our settlements will as certainly cause the  19 Savage as the Wolfe to retire; both being  20 beasts of prey tho' they differ in shape.  In a  21 word there is nothing to be obtained by an  22 Indian war but the soil they live on and this  23 can be had by purchase at less expense, and  24 without that bloodshed, and those distresses  25 which helpless women and children are made  26 partakers of in all kinds of disputes with them  27 ..."  28  29 Now, in my submission, in British constitutional  30 theory, according to the American view, no difference  31 existed between the Crown's title to vacant lands and  32 those occupied by the Indians.  The lands subject to  33 the Proclamation could be granted to settlers or  34 reserved to Indians as the Crown pleased.  35 Now, perhaps I can put my finger on that, my lord.  36 THE COURT:  Well, that's the analysis you made of the  37 Proclamation --  38 MR. GOLDIE:  That's correct.  I just wanted to — well, I'll get  39 that again.  But that's what I went into both last  4 0 weekend and a few minutes ago.  41 In my submission, nothing in the American view  42 supports a claim to proprietary rights or to a  43 non-proprietary right of occupancy beyond these lands  44 actually occupied.  45 Professor Merk traces the failure of the policy of  46 expediency recommended by Washington and embodied in  47 the Congressional Proclamation of 1783, which is under 2756?  Submissions by Mr. Goldie  1 tab 49, and that too was a Proclamation, the paragraph  2 at the top of page 339, which is the right-hand side.  3 THE COURT:  This is in tab 49?  4 MR. GOLDIE:  Yes, my lord.  5  6 "Whereas it is essential to the welfare of the  7 United States, as well as necessary for the  8 maintenance of harmony and friendship with the  9 Indians, not members of any of the States, that  10 all cause of quarrel or complaint between them  11 and the United States, or any of them, should  12 be removed and prevented; therefore the United  13 States in Congress assembled, have thought  14 proper to issue their Proclamation, and they do  15 hereby prohibit and forbid all persons from  16 making settlements on lands inhabited or  17 claimed by Indians, without the limits or  18 jurisdiction of any particular State.  And from  19 purchasing or receiving any gift or cession of  20 such lands or claims without the express  21 authority and direction of the United States in  22 Congress assembled."  23  24 Now, the policy which was adopted by the United  25 States resulted in my submission in continuing  26 warfare, and reference will be made later to the  27 Indian wars and the American territories adjoining  28 what became the mainland territory of British  29 Columbia.  30 Now, the evanescent nature of the admitted right  31 of occupancy is demonstrated by the conclusion of the  32 Supreme Court of Canada in Smith and The Queen.  That  33 is found in the defendant's grey books of authorities,  34 my lord, volume 4, tab S4.  35 Now, the conclusion of that case was that the  36 Indian interest in land disappeared in the course of a  37 surrender, which was complete.  The headnote after  38 reciting the facts which I have referred to briefly  39 already, said, and concludes with this statement:  40  41 "This appeal is to determine whether this  42 release, that is to say a release by the Indian  43 band to the federal government in 1895 was  44 effective in terminating the operation of  45 Section 91(24) and the attendant rights of the  46 beneficiary Indians."  47 27569  Submissions by Mr. Goldie  1 As I say -- the case arose in New Brunswick -- a  2 Province in which there exist no known treaties of  3 cession or surrender.  The Indians in question  4 occupied lands pursuant to a 'grant of occupation'  5 made by the then colony in 1783 and confirmed, after  6 survey, by a further grant in 1808.  A surrender was  7 made to Canada in 1895.  In the action, Canada, on  8 behalf of the band, sought an order of possession.  It  9 was held Canada had no interest in the lands, by  10 virtue of St. Catherine's Milling, nor did the band --  11 the Indian interest therein disappearing in the course  12 of surrender - S.C.R., page 569.  13 Now, that page is in the yellow binder, my lord,  14 under the tab 50.  This was an unanimous judgment of  15 the court.  The judgment of Mr. Justice Estey being  16 the judgment of the court.  At the page immediately  17 preceding he has just finished quoting from St.  18 Catherine's Milling, and at the top of the page that's  19 in the yellow binder your lordship will see the first  20 line at page 54 as "a personal or usufructory right".  21 And that quotation, of course, is from St.Catherine's  22 Milling.  23 Then His Lordship proceeds to define usufruct.  24 Law.  The right of temporary possession, use or  25 enjoyment of the advantages of property belonging to  26 another, so far as may be had without causing damage  27 or prejudice to it.  28 Use, enjoyment or profitable possession of  29 something, and so on.  Then the words to which I refer  30 immediately follow.  31  32 "The release ..."  33  34 That is to say the release in favour of Canada in  35 1895.  36  37 "... therefore is of a personal right which by  38 law must disappear upon surrender by the person  39 holding it; such an ephemeral right cannot be  40 transferred to a grantee, be it the Crown or an  41 individual.  The right disappears in the  42 process of the release, and a release couched  43 in terms inferring a transfer cannot operate  44 effectively in law on the personal right any  45 more than an express transfer could.  In either  46 process the right disappears."  47 27570  Submissions by Mr. Goldie  1 Now, the particular result in this case was that  2 Canada's attempt to eject the plaintiff who was  3 claiming under adverse title or title of adverse  4 possession, which apparently was allowed by provincial  5 law, failed, and the plaintiffs' interest was then to  6 be determined by provincial law.  7 My lord, in paragraph 51 I say the contrast  8 between the American and Canadian experience in the  9 Atlantic seaboard colonies continued after the  10 American Revolution as much as before.  There never  11 have been any treaties of cession and surrender or  12 purchase in the maritime provinces.  After extract  13 from the written argument of counsel for the province  14 of Ontario in the Bear Island case is appended, which  15 is directed to the experience in Nova Scotia and New  16 Brunswick, its conclusions are adopted by the  17 province.  The plaintiffs' witness, Dr. Lane, was  18 unable to point to any treaties of purchase and  19 cession in the maritimes.  And that appears to be  20 confirmed, my lord, by the map prepared by the  21 Department of Indian and Northern Affairs in Canada,  22 which shows no treaties in the maritimes.  23 THE COURT:  Was that statement at the bottom of your page 30 to  24 Dr. Lane a reference to her evidence at this trial?  25 MR. GOLDIE:  Yes.  Your lordship may recall -- I don't know why  26 your lordship should recall any evidence.  27 THE COURT:  No, I really shouldn't.  28 MR. GOLDIE:  But in the course of her cross-examination she was  29 asked if there were any treaties had been entered into  30 in any part of what became Canada, other than the  31 numbered treaties and so on, and as I say she is  32 unable to point to any.  33 THE COURT:  My question is directed to —  34 MR. GOLDIE:  It's this trial.  35 THE COURT: -- to doubt whether she perhaps gave evidence on the  36 Bear Island case.  37 MR. GOLDIE:  I'm sorry, I should have —  38 MR. RUSH:  This is in respect of cessions of land.  There are  39 treaties in the maritimes, but not relating to  40 cessions of land.  That was the subject matter of  41 Simon.  42 MR. GOLDIE:  Yes, that's correct.  And I say — I am not talking  43 about treaties of friendship, which are what the --  44 what my friend is referring to.  45 MR. RUSH:  No, Simon didn't involve the treaty of friendship.  46 MR. GOLDIE:  Well, I was under the impression that it was a  47 treaty of -- 27571  Submissions by Mr. Goldie  1 THE COURT:  What you are suggesting, it was a treaty --  2 MR. RUSH:  Affirming hunting and rights —  3 THE COURT:  Affirming but not ceding lands.  4 MR. RUSH:  It wasn't land cession treaty.  5 MR. GOLDIE:  And my observation is restricted to land cession  6 treaties.  7 THE COURT:  Okay.  8 MR. GOLDIE:  Now, my friends in their argument suggest that the  9 experience in New Brunswick is a matter of illegal  10 aberration, and in my submission it is simply a  11 reflection of the fact that the treaty experience in  12 the United States or what is now the United States and  13 in some measure what is now Upper Canada or what  14 became Upper Canada reflected expediency, in the sense  15 of the word used by General Washington, and in the  16 same sense used by Mr. Justice Taschereau, that it was  17 good policy to arrive at an understanding by a  18 negotiation and by force of arms; and of course there  19 were many treaties that were concluded after some  20 measure of warfare had taken place, not necessarily  21 between the settlers and the Indians, but as a result  22 of warfare between the Indians one with the other, and  23 the settlers providing in some cases protection in  24 exchange for land.  However you characterize them,  25 they are, in my submission, largely irrelevant to the  26 situation in British Columbia.  27 I am not going to -- the Simon treaty, my lord, as  28 Ms. Sigurdson reminds me, may be found in the report  29 of that case, which is tab 31 of volume 9 of the  30 plaintiffs' authorities, and it is headed "treaty or  31 articles of peace and friendship renewed between", in  32 this case, the Captain General and Governor in Chief  33 of the Province of Nova Scotia or Acadia, and a number  34 of the chiefs of the Micmac.  And as my friend states  35 in article 4, it provides for free liberty of hunting  36 and fishing.  But the description that I have just  37 read is what heads the text of the treaty.  38 I am not going to take your lordship through the  39 argument contained -- that I have put in my summary  40 from Bear Island, but I draw your lordship's attention  41 to page 19 of that summary, which refers to Warman  42 and Francis.  That's a case that I have already  43 referred to, but the extract, the middle of page 19 is  44 worth noting.  45  46 "So far as we are concerned with the Micmacs  47 this can only mean that there was no surrender 27572  Submissions by Mr. Goldie  1 because there were no proprietary rights in our  2 law in the circumstances."  3  4 Then I go to page 31 of my summary.  I submit the  5 history of the Indian peoples in the American colonies  6 prior to the American Revolution provides no evidence  7 of the policy of the Crown in what is now Canada.  The  8 evidence of what took place in the maritimes confirms  9 that acknowledgement of non-proprietary Indian title  10 was a matter of grace on the part of the Crown which  11 was never exercised in a manner analagous to the  12 treaties and agreements which were a feature of  13 American colonial history accompanying, as I say, in  14 many instances land speculation.  15 Now, my lord, there was a suggestion, and I am  16 interjecting a brief submission at this point, there  17 was a suggestion in my friends' argument at transcript  18 314, page 23520, line 44, to page 23521, line 15, that  19 there were treaties of surrender or cession in Quebec.  20 And indeed that suggestion can be taken from the  21 judgment of one of the two descending judges in the  22 Supreme Court of Canada in St. Catherine's Milling,  23 and that judgment was referred to by Mr. Jackson.  24 In my submission that evidence is not of a treaty of  25 surrender or cession, but of an attempt to use the  26 free fur trade provisions of the Royal Proclamation as  27 an excuse on the part of a trader to build and trade  28 in lands which have been designated by the French King  29 as sites for the Indians might resort to trade and  30 become domicile.  And in my understanding there was no  31 treaty, but by the articles of capitulation they were  32 reserved to the Indians.  And as I have stated, Dr.  33 Lane in this case was unable to point to any treaties  34 of cession or surrender in what was old Quebec or  35 indeed present Quebec until the very recent times.  36 My lord, this is a rather -- ends a rather lengthy  37 excursion prior to returning to Vancouver Island.  It  38 was prompted by Mr. Justice Mahoney's observation that  39 experience in the American colonies was of some  40 assistance.  41 I note in paragraph 53 that while Mr. Justice  42 Mahoney held that the Charter of 1670 did not  43 extinguish aboriginal title, and we have submitted  44 that it is probably the act of acknowledgement of  45 aboriginal title, he was in very little doubt about  46 either the effect of settlement or the nature of a  47 Crown grant to a settler.  At page 565 he said: 27573  Submissions by Mr. Goldie  1  2 "The co-existence of an aboriginal title with the  3 estate of the ordinary private land holder is  4 readily recognized as an absurdity.  The  5 communal right of aborigines to occupy it  6 cannot be reconciled with the right of a  7 private owner to peaceful enjoyment of his  8 land."  9  10 And, my lord, in my submission that accords with  11 both the law and common sense.  12 And at page 577, I have already referred to this,  13 he said:  14  15 "If the aboriginal title that arose in Rupert's  16 Land independent of the Royal Proclamation were  17 a proprietary right then it would necessarily  18 have been extinguished by the Royal Charter of  19 May 2, 1670, which granted the Hudson's Bay  20 Company ownership of the entire colony."  21  22 Now, in my submission this latter statement is  23 applicable with even greater force to Vancouver  24 Island.  Although the grant of 1849 conveyed the same  25 interests to Vancouver Island as the grant of 1670 did  26 to Rupert's Land, the principle purpose of the former  27 was settlement by private land holders whose  28 expectation was "peaceful enjoyment of his land".  The  29 continued validity of the very grant from the Crown to  30 the company was dependent on the establishment within  31 five years of a colony consisting of resident settlers  32 who purchased their lands.  By its terms the grant of  33 1849 denies any proprietary interest of Indian peoples  34 in the soil to Vancouver's Island and the adjacent  35 islands.  36 And I am contrasting the grant of 1670 with the  37 grant of 1849 and the apparent purposes of the two  38 grants.  And I say a grant for the purpose of  39 settlement is a denial of a proprietary interest in  40 the soil on the part of any other than the Crown.  41 And the reason for that is clear, that settlement  42 depends upon good title, clear title being granted by  43 the Crown to the settler.  44 Now, with respect to the acknowledgement on  45 Vancouver Island of some aboriginal interest of the  46 non-proprietary character, the story is different.  47 Treated as a matter of first instance, there is no 27574  Submissions by Mr. Goldie  1 conclusive evidence of actual or implied  2 acknowledgement of aboriginal title of a  3 non-proprietary nature on Vancouver Island.  The  4 following are the relevant considerations, some of  5 which will be examined in greater detail.  6 First, the charter of 1849, as above noted,  7 expressly contemplated settlement - the antithesis of  8 any proprietary or indeed non-proprietary right.  No  9 reference is made in the charter to aboriginal title.  10 The anonymous colonial office document, which is  11 Exhibit 1039, tab 16, and it's under tab 4-57, my  12 lord, and it was introduced by Dr. Lane, and she did  13 so for the purpose of directing the court's attention  14 to the statement on page 3, or with the statement  15 beginning on page 3, the last paragraph and going over  16 to page 4, the first two paragraphs.  And I'll come  17 back to that.  It speaks of the extinguishment of  18 Indian title by the Hudson's Bay Company as an  19 obligation of the same character as that which would  20 have been undertaken by the Crown.  The reference to  21 the Crown parting with the land of the colony while  22 some unextinguished Indian interest remains, while  23 inconsistent with a proprietary interest over the  24 island as a whole, is consistent with non-proprietary  25 right of occupancy of the kind referred to in the  26 documents dealing with New Zealand.  But the language  27 is not declaratory.  It addresses a hypothetical state  28 of affairs.  29 Third, there is no reference to Indian title in  30 the commission of and Royal instructions to the first  31 Governor, Richard Blanshard.  32 Fifth, there is no reference to Indian title in  33 the commission of and Royal instructions to the second  34 governor, Mr. Douglas.  35 Next, the instructions given Douglas by the  36 Hudson's Bay Company as its agents in 1849; the nature  37 of the experience in New Zealand with respect to  38 Indian title referred to in those instructions and the  39 actions of Douglas upon receipt of his instructions.  40 Next, the ignorance of the colonial office with  41 respect to the agreements entered into by Douglas as  42 agent for the Hudson's Bay Company with Indian tribes  43 on the south and east coast of Vancouver Island and  44 the subsequent position taken by the Hudson's Bay  45 Company with respect to the recovery of the  46 consideration paid to the Indians as on the conclusion  47 of those agreements. 27575  Submissions by Mr. Goldie  1 Next, the events which took place and were taking  2 place in the adjacent territory of Washington.  And  3 finally the history of Cowichan claim and the request  4 of the colonial office for funds to extinguish that  5 claim.  6 Now, those, my lord, in my submission are the  7 relevant considerations which ought to be taken into  8 account in determining whether there was a recognition  9 of a non-proprietary interest, and the Indian peoples  10 in the colony of Vancouver Island.  11 Now, some of these events occurred after 1858 and  12 will be referred to in a later section.  Of the  13 foregoing list, items B, C, D and E will be examined  14 at greater length here, this section dealing with  15 interest before 1858.  16 Now, the document in my submission is most likely  17 a draft of a speech to be given in Parliament.  It is  18 acknowledged by all concerned that its authorship is  19 unknown.  It was found in archives of the colonial  20 office, and when examined it bears, in my submission,  21 the -- the hallmarks of notes for a speech in  22 Parliament.  23 The obligation, and I go back now to the text  24 itself, my lord, under tab 57.  The discussion of the  25 Indian people starts off at the bottom of page 3.  26  27 "With regard to the Indians it has been thought  28 on the whole a better course is to make no  29 stipulations respecting them in the grant."  30  31 THE COURT:  What grant do you suppose that is?  32 MR. GOLDIE:  That is grant of Vancouver Island.  33 THE COURT:  1849, Hudson's Bay —  34 MR. GOLDIE:  Yes.  And it is — the date of that grant, my lord,  35 is of some significance.  It's January 13th, 1849.  36 And while there's been some speculation over the  37 dating of this document, it is clear that it is  38 speaking of the charter having been granted in the  39 past tense.  And that is confirmed elsewhere.  And  40 continuing.  41  42 "Little is in fact known of the natives of this  43 island, by the company or by anyone else.  44 Whether they are numerous or few, strong or  45 weak; whether or not they use the land for such  46 purposes as would render the reservation of a  47 large portion of it for their use important or 27576  Submissions by Mr. Goldie  1 not, are questions which we have not the full  2 materials to answer.  Under these  3 circumstances, any provisions that could be  4 made for a people so distant and so imperfectly  5 known might turn out impediments in the way of  6 colonization without any real advantage to  7 themselves.  And it is thought the more safe to  8 leave this matter to the company, inasmuch as  9 its dealings with and knowledge of the North  10 American Indians are of course very extensive;  11 and inasmuch as notwithstanding the many  12 accusations of which that company has been the  13 object, no distinct charges of cruelty or  14 misconduct toward the Indian tribes under its  15 control have been made out by reasonable  16 evidence; while every year brings painful  17 accounts of mutual wrongs and mutual revenge  18 between Indians and whites from the  19 neighbouring regions not under their control.  20 It must however be added that in parting with  21 the land of the island Her Majesty parts only  22 with her own right therein, and that whatever  23 measures she was bound to take in order to  24 extinguish the Indian title are equally  25 obligatory on the company."  26  27 Now, I say that the obligation does not -- and I  28 take issue with my friends on this point -- does not  29 amount to recognition of a legal right, but refers to  30 a political obligation to protect the natives in  31 respect of the land they actually occupied and needed  32 for their own use; such protection being in respect of  33 third parties.  That emerges from the discussion  34 whether or not they use the land for such purposes as  35 would render the reservation of a large portion of it  36 for their use important or not are questions which we  37 have not full stated.  And the next sentence:  38  39 "Under these circumstances any provisions that  40 could be made for people so distant and so  41 imperfectly known might turn out impediments in  42 the way of colonization."  43  44 Now, the factors supporting this conclusion are  45 firstly the document is an incomplete draft; the date  46 of the constitution of the Pujet Sound Company is left  47 blank, as is the property qualification for voters. 27577  Submissions by Mr. Goldie  1 By July 1849 this had been fixed at 20 acres.  2 That can be determined from, I think it was the  3 commission of Blanshard.  4 Second, it postdates the grant to the company of  5 January 13, 1849, as is evident from the appended  6 resolutions of the Hudson's Bay Company which refer to  7 this date.  8 And your lordship will find appended a document  9 headed resolutions of the Hudson's Bay Company  10 colonization in Vancouver's Island.  And this is  11 confirmed in part by the date of the printing of the  12 document, March 1849.  13 It addresses those features which had attracted  14 parliamentary comments before the grant was made,  15 particularly the doubts about the interest in and  16 ability of the Hudson's Bay Company to found a true  17 colony.  And there is an extract from debates, my  18 lord, that took place in 1848.  The background is  19 this, that the Hudson's Bay Company in the colonial  20 office had come to the conclusion that it was to the  21 mutual advantage of both for the Hudson's Bay Company  22 to obtain a grant of Vancouver's Island to which they  23 could then transfer their headquarters from Oregon,  24 and in order to meet the views of the colonial office  25 they undertook to colonize or settle the Vancouver  26 Island.  When this was first raised in Parliament,  27 there was considerable opposition to the Hudson's Bay  28 Company having anything to do with colonization,  29 because it was regarded as a fur trading company, and  30 fur trade was not thought to be compatible with  31 settling.  And the extract under tab 54 is from a  32 debate which took place in 1848.  Partly as a result  33 of that debate and partly as a result of other public  34 outcry, Douglas, was not appointed, Blanshard was  35 appointed in his place, and there was a reference to  36 the judicial -- to committee of the Privy Council to  37 determine whether anything further should be done to  38 the draft the charter in order to ensure that the  39 settlement provisions were binding on the Hudson's Bay  4 0 Company.  41 The speech that is -- takes up a good part of  42 this -- I won't go into, my lord, but Lord Grey at  43 page 478, using the page numbers of the upper  44 right-hand corner of Hansard.  Well, I'll start at the  45 bottom of the page, bottom of the left-hand column.  46  47 "To say that because they carry on the fur trade 2757?  Submissions by Mr. Goldie  1 they are unfit to colonize Vancouver's Island  2 is the same as saying that because a noble peer  3 possesses a deer forest in the heart of  4 Scotland he is totally unfit to be a good  5 landlord and improve the value of his estate.  6 I believe that the establishments for the fur  7 trade will give additional value to the  8 establishments for the purpose of colonization  9 at Vancouver's Island.  I must defend the  10 Hudson's Bay Company against the charge which  11 has been brought against them of  12 mal-administration of the territory which they  13 possess in North America."  14  15 So I say that when one reads the document as a  16 whole, it is seen to address those features which at  17 least in part attracted parliamentary comment before  18 the grant was made.  It refers on page 2 to printed  19 papers.  And your lordship can see that in the margin,  20 page 2.  And these refer to papers that were printed  21 by the order of the House of Commons.  And there was a  22 return of papers which set forth all of the  23 negotiations and discussions between the Hudson's Bay  24 Company and the colonial office.  I say these would  25 appear to be the papers produced to motion agreed to  26 in Parliament on August 24th, 1848.  That motion is  27 found in the extract from Hansard that I put in.  28 I say in item E, on the whole, in my submission,  29 it is a justification for the grant in terms suitable  30 to a Parliamentary debate.  Such debates occurred in  31 1849.  Such a construction -- I am not saying that the  32 debates which occurred in 1849 can be found to match  33 this document verbatim, but I am simply saying that  34 the debates occurred in 1849.  35 MR. RUSH:  Or at all.  You said verbatim.  Is there any evidence  36 that it tracts it in any way?  37 MR. GOLDIE:  Well, the evidence comes from comparing the  38 concerns which were expressed in 1848 with the paper  39 which was prepared before the debates in 1849.  And I  40 have done that, and there is a tract.  I am not saying  41 there is any tracting in the debates that did occur.  42 Such a construction of the reference to Indians would  43 be consistent -- I am now referring to reference to  44 the Indians which I read -- would be consistent with  45 Lord Grace's despatch of December 23, 1846 to the  46 Governor in Chief of New Zealand.  Lord Grey was the  47 colonial secretary in both cases.  These instructions 27579  Submissions by Mr. Goldie  1 are found in papers presented to both houses of  2 Parliament in 1847.  At pages 67 to 68 Lord Grey  3 denies, in principle, any aboriginal interest in land  4 not actually occupied.  Lord Grey was, of course, the  5 colonial secretary who negotiated the Charter of 1849  6 with the Hudson's Bay Company, and who was called upon  7 to defend that grant in Parliament.  The affairs of  8 New Zealand were much before Parliament's attention at  9 this time.  Reference is made to the report from the  10 Select Committee on New Zealand, House of Commons,  11 1844, and it will be recalled that an umbrella treaty,  12 the Treaty of Watanga had been negotiated with the  13 Maori peoples in 1840.  14 My lord, the principles which Lord Grey referred  15 to is -- I have already alluded to, but in the extract  16 under tab 57E really begins midway down the page in  17 the third line of the paragraph beginning with the  18 words, "Believing that the instructions ..."  19 THE COURT:  Yes.  20 MR. GOLDIE:  And the third line he says:  21  22 "I turn to other topics in which it seems  23 indispensable that on the present occasion I  24 should convey to you explanations for which, of  25 course, no appropriate place could be found in  26 the legal instruments already mentioned."  27  28 That refers to the fact that he is addressing this  29 to the newly appointed governor whose commission, the  30 Royal instructions are being sent contemporaneously.  31 And he continues:  32  33 "I avert especially to what relates to the  34 aboriginees of New Zealand, and the settlement  35 of the public lands in those islands.  36 I cannot approach this topic without  37 remarking that the protracted correspondence to  38 which it is given rise, the public debates and  39 resolutions which have sprung from it, and the  40 enactments and measures of your predecessors in  41 the government have all contributed to throw  42 into almost inextricable confusion the  43 extensive rights and claims of various classes  44 of individuals among the inhabitants of New  45 Zealand, to render very embarrassing the  46 inquiry in which you must doubtless be engaged  47 respecting line of conduct which Her Majesty's 27580  Submissions by Mr. Goldie  1 government expect you to pursue, and at the  2 same time to make it almost impossible for us  3 to determine, with any confidence, what that  4 conduct ought to be, and how far, in a state of  5 affairs so complicated, it is possible now to  6 act upon the principles to which, in the  7 absence of these difficulties, I should have  8 prescribed adherence.  I will not attempt any  9 retrospect of those documents and proceedings;  10 I should but be adding to the perplexity which  11 I acknowledge and regret.  It shall be my  12 attempt rather to explain, as briefly as the  13 nature of the subject admits, what is the  14 policy which, if we were unembarrassed by past  15 transactions, it would be right to follow, and  16 which so far as any freedom of choice remains  17 to us, ought still to be adopted regarding the  18 right of property in land which should be  19 acknowledged or created, more especially as  20 affecting the aboriginees of New Zealand."  21  22 And then he says that there has been a repeal of  23 the Australian Land Sales Act which have been passed  24 when New Zealand was a dependency of Australia.  And  25 he goes on:  26  27 "The Queen, as entitled in right of her Crown to  28 any waste lands in the colony, is free to make  29 whatever rules Her Majesty may see fit on the  30 subject.  The accompanying Charter accordingly  31 authorizes the governor to alienate such lands.  32 The accompanying instructions direct how that  33 power is to be used.  I proceed to explain the  34 motives by which these instructions have been  35 dictated.  36 The opinion assumed, rather than advocated,  37 by a large class of writers and kindred  38 subjects is, that the aboriginal inhabitants of  39 any country are the proprietors of every part  40 of its soil of which they have been accustomed  41 to make any use, or to which they have been  42 accustomed to assert any title.  This claim is  43 represented as sacred, however ignorant such  44 natives may be of the arts or of the habits of  45 civilized life, however small the number of  46 their tribes, however unsettled their abodes,  47 and however imperfect or occasional the uses 27581  Submissions by Mr. Goldie  1 they make of the land.  Whether they are  2 nomadic tribes depasturing cattle, or hunters  3 living by the chase, or fishermen frequenting  4 the sea-coasts or the banks of rivers, the  5 proprietary title in question is alike ascribed  6 to them all."  7  8 My lord, I have read part of that on, I think, May  9 the 14th or 15th, and I am not going to repeat it, but  10 the thrust of it is that the interest of the native is  11 to be recognized in respect of the lands actually  12 occupied.  13 Now, my friend referred to the Select Committee  14 report of the House of Commons, which I have already  15 referred to as adopting the settlers' point of view,  16 and that the colonial office did not accept its  17 recommendations.  That, with respect, is incorrect.  18 The instructions paralleled that I have referred to  19 here, paralleled the Select Committee's report, but  20 said, as did the Select Committee, that the the Crown  21 could not in honour resile from the Treaty of  22 Wantanga, but so far as lands were free of the Treaty  23 of Watanga, that they were to govern themselves in  24 accordance with these instructions.  25 Now, the -- my friend in the summary of the  26 argument, the plaintiffs' summary of the argument,  27 refers to -- well, I don't think my friend referred to  28 this in his oral submission.  It was in the summary,  29 but I don't think he referred to it in his oral  3 0 submission.  31 Now, going to -- so summing up with respect to the  32 anonymous document, it, in my submission, is not a  33 document which is intended to reflect an instruction  34 in law.  It was never, so far as anybody is aware,  35 communicated to anybody.  If it is construed in the  36 sense that I have submitted it should be, it would be  37 consistent with the Colonial Secretary's views on the  38 state of affairs in New Zealand, and all in all, in my  39 submission, it is a document that was created in  40 anticipation of a Parliamentary debate.  41 Now, turning to item C and D, the absense of any  42 reference to Indian title in the instructions given to  43 the governors of Vancouver Island, Blanshard and  44 Douglas.  That is to say the governors up to 1885.  45 The Commission of and Royal instructions to Blanshard  46 are dated July 9 and 16, 1849 respectively, and are  47 found in that exhibit number, and are found under tab 27582  Submissions by Mr. Goldie  1 4-58.  And all I can say is that unlike the Royal  2 instructions sent by the same colonial secretary to  3 the governor and chief of New Zealand, which contained  4 detailed provisions with respect to aboriginal claims,  5 the manner of recognizing the same and the places  6 where native laws and customs were to be observed,  7 those sent to Blanshard and Douglas are completely  8 silent on these points.  9 Perhaps I should refer to Royal instructions sent  10 to New Zealand.  And it's the second document, my  11 lord, under this tab number.  It follows Blanshard's  12 commission and instructions, and it is one page or two  13 pages only of the extensive instructions sent out in  14 1846, I think it was to the newly appointed governor  15 of New Zealand.  But your lordship will see, and I am  16 not going to --  17 THE COURT:  Sorry, follows the first seperator.  18 MR. GOLDIE:  Follows Blanshard commission under tab 58.  The  19 first blue separator sheet marks it.  20 And I say these instructions are very extensive.  21 And Chapter XIII headed "On the settlement of the  22 waste lands of the Crown".  And instructions are given  23 for the preparation of charts, especially charts of  24 all those parts of the said islands over which the  25 aboriginal natives or the settlers or European birth  26 and origin have established any valid titles, whether  27 of property or of occupancy.  And there is reference  28 to a protector of the aboriginees, and the procedure  29 to be followed in establishing the extent of the lands  30 claimed by the native population.  31 And paragraph 6:  32  33 "All lands not so claimed are provisionally  34 registered by the time so to be limited as  35 aforesaid, shall thenceforward be and  36 considered as vested in us, and as constituting  37 the demesne lands of us in right of our Crown  38 within the New Zealand Islands."  39  40  41 THE COURT:  Are these instructions given before the treaty or  42 after?  43 MR. GOLDIE:  They are after the treaty.  4 4    THE COURT:  Yes.  45 MR. RUSH:  There are instructions to Captain Hobson before the  46 treaty, my lord.  47 MR. GOLDIE:  Oh, yes.  Yes.  They were the subject matter of the 27583  Submissions by Mr. Goldie  1 Select Committee's comments and of Lord Grace's  2 instructions -- in this sequence.  But my point here  3 is not to take your lordship through these  4 instructions.  My point here is to contrast them with  5 the silence on the point in the instructions sent to  6 Blanshard.  7 Now, I say that requirement, back in paragraph 58,  8 the requirement that the property qualification for  9 members of council be 20 or more acres of freehold  10 land is inconsistent with any subsisting native title.  11 That requirement is on page 2 of both commissions.  12 And, my lord, I say this, that whatever the expediency  13 of making no mention of native title in the Royal  14 grant of January 1849, and I am referring back to the  15 anonymous documents which says we didn't mention that,  16 the failure to make any reference in the commissions  17 and instructions in July of 1849 negates in my  18 submission any inference that the Crown acknowledged  19 or recognized any such title on Vancouver Island,  20 whether --  21 THE COURT: I found a reference to 20 acres being those owners  22 who were going to be summonsed -- called general  23 assemblies.  Is there a power to grant 20 acre  24 parcels?  25 MR. GOLDIE:  He has a power of alienation, my lord.  26 THE COURT:  Is that here somewhere?  27 MR. GOLDIE:  I think so.  I think it's in the — not in the  28 commission but in the instructions.  Perhaps I could  29 add that to the --  30 THE COURT:  Perhaps you can look at it, and we'll continue with  31 this at 2:00 o'clock, if that's convenient.  Thank  32 you.  33 THE REGISTRAR:  Order in court.  Court stands adjourned.  34  35 I HEREBY CERTIFY THE FOREGOING TO BE  36 A TRUE AND ACCURATE TRANSCRIPT OF THE  37 PROCEEDINGS HEREIN TO THE BEST OF MY  38 SKILL AND ABILITY.  39  4 0    41 LORI OXLEY  42 OFFICIAL REPORTER  43 UNITED REPORTING SERVICE LTD.  44  45  46  47 27584  Submissions by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED AT 2:00 O'CLOCK P.M.)  SUBMISSIONS BY MR. GOLDIE:  (Cont'd)  MR. GOLDIE:  My lord, at the break your lordship had asked me if  the power to dispose of land was in Mr. Blanshard's  instructions and I should have recalled the obvious  and that is that the Hudson's Bay Company had the  power to convey land.  THE COURT:  Oh, yes.  MR. GOLDIE:  Could your lordship refer in the yellow binder to  tab 26, which is the grant to the Hudson's Bay  Company.  THE COURT:  Tab 2 6?  MR. GOLDIE:  Yes, in the volume we are using.  THE COURT:  Yes.  MR. GOLDIE:  4-26.  If your lordship would look over to the  third page there of the grant.  Now, I am going to be  drawing your lordship's attention to the split which  is made between government and the ownership and  granting of land.  But if you go about part way down  the page, beginning, the paragraph beginning with the  words:  "Now know ye that we be moved by the reasons  aforementioned, do, by these presents..."  Et cetera,  " give, grant and confirm under the said  governor and Company of Adventurers of England  Trading into Hudson's Bay, and their  successors, all that the island called  Vancouver's Island."  And then the next page, next paragraph:  "We do by these presents make, create and  constitute the said governor and company for  the time being, and their successors, the true  an absolute lords and proprietors of the same  territories."  THE COURT: I am sorry, where is that?  MR. GOLDIE: That's the next paragraph, my lord.  THE COURT: The next paragraph?  MR. GOLDIE: Yes. 27585  Submissions by Mr. Goldie  1 And then going to the last paragraph on that page,  2 the proviso:  3  4 "provided always, and we declare, that this  5 present grant is made to the intent that the  6 said governor and company shall establish upon  7 the said island a settlement or settlements of  8 resident colonists, emigrants from Our United  9 Kingdon of Great Britain and Ireland, or from  10 other Our Dominions, and shall dispose of the  11 lands there as may be necessary for the  12 purposes of colonization and to the intent that  13 the said company shall, with a view to the  14 aforesaid purposes, dispose of all lands hereby  15 granted to them at a reasonable price except so  16 much thereof as may be required for public  17 purposes; and that all monies which shall be  18 received by the said company for the purchase  19 of such land, and also from all payments which  20 may be made to them for or in respect of the  21 coal or other minerals to be obtained in the  22 said island, or the right of searching for and  23 getting the same, shall (after deduction of  24 such sums by way of profit as shall not exceed  25 a deduction of 10 percent, from the gross  2 6 amount received by the said company from the  27 sale of such land, and in respect of such coal  28 or other minerals as aforesaid) be applied  29 towards the cononization and improvement of the  30 island; and that the company shall reserve for  31 the use of us, our heirs and successors, all  32 such land as may be required for the formation  33 of naval establishments, We, Our heirs and  34 successors, paying a reasonable price for the  35 same."  36  37 And then the next paragraph, my lord, provides for  38 the resumption of the island, if the company has not,  39 within the term of five years, have established upon  40 the island a settlement of resident colonists, and  41 five lines from the bottom after stating "it shall be  42 lawful for Us, Our heirs and successors to revoke this  43 present grant and to enter upon and resume the said  44 island and premises hereby granted" we come to this:  45  46 "Without prejudice, nevertheless, such  47 dispositions as may have been made in the 27586  Submissions by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  THE  COURT:  13  MR.  GOLDIE  14  15  THE  COURT:  16  MR.  GOLDIE  17  18  19  20  THE  COURT:  21  MR.  GOLDIE  22  ]  23  24  THE  COURT:  25  MR.  GOLDIE  26  THE  COURT:  27  MR.  GOLDIE  28  29  THE  COURT:  30  MR.  GOLDIE  31  32  33  THE  COURT:  34  MR.  GOLDIE  35  36  37  THE  COURT:  38  MR.  GOLDIE  39  40  41  THE  COURT:  42  MR.  GOLDIE  43  44  THE  COURT:  45  46  MR.  GOLDIE  47  meantime by the said governor and company of  any land on the said island for the actual  purpose of colonization and settlements."  So that it is clear that the Hudson's Bay Company  had the power and indeed was required to dispose of  land for purposes of colonization.  And it would be from the Hudson's Bay Company that  the 20 acre requirement of the people eligible for the  legislative council, that is referred to in  Blanshard's commission, would come.  And that requirement is in tab 58?  :  Yes, it is.  Does your lordship have the reference?  Yes, thank you.  :  Your lordship also asked me to identify the part  that I had in mind on page 27 when I said  extinguishment could take place with or without  purchase and consent.  Yes.  :  And I now refer to the report of Johnson and  Mcintosh, at Lawyers Edition, page 691, it's tab 22 of  plaintiffs' volume 9.  11, I am sorry.  Yes.  I am sorry, tab 11?  :  No, volume 11, tab 22.  Yes, I have it.  Thank you.  :  And the reference that I had in mind is -- starts  on the left hand column, fourth paragraph.  I am sorry, what page again?  :  It's Lawyers Edition page 691, in -- I think in  your lordship's -- in the plaintiffs' authorities  there is a number 28 in the upper right hand corner.  Yes.  :  And the paragraph I refer to begins with the words  "according to the theory of the British  constitution..."  Which column?  :  The left hand column, midway down the page,  paragraph beginning "according to the theory of  British constitution..."  No, I am sorry.  What page should be at the top?  :  In the upper right hand corner it should be a  stamped 2 8.  I have got a 281.  I wonder if that's the same  thing.  :  Well, it should be 284, but the 4 is missing.  It  follows 283 and then it's 28, and then there is 285. 27587  Submissions by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  It's 284.  All right.  MR. GOLDIE:  And beginning with the words:  "According to the theory of the British  constitution, all vacant lands are vested in  the Crown as representing the nation and the  exclusive power to grants them is admitted to  reside in the Crown as a branch of the Royal  prerogative."  Then if your lordship would drop down in the same  paragraph, about eight lines from the bottom it says:  "A title might be obtained either by making a  entry with the surveyor of a County in  pursuance of law or by an order of the governor  in council who is the deputy of the King or by  an immediate grant from the Crown.  In  Virginia, therefore, as well as elsewhere in  the British dominions, the complete title of  the Crown to vacant lands was acknowledged.  So  far as respect of the authority of the Crown,  no distinction was taken between vacant land  and land occupied by the Indians, the title  subject only to the right of occupancy by the  Indians was admitted to be in the King as was  his right to grant that title."  I took from that, my lord, that the right of the  Crown was absolute, whether vacant lands or lands  occupied by the Indians.  And, this is in the  discussion of the Royal Proclamation and the sentence  which immediately follows:  "The lands then to which this proclamation  referred were lands to which the King had a  right to grant or to reserve to the Indians."  THE COURT: There are other passages in this judgment, however,  which refer to the right of the occupancy to be until  surrendered by treaty or purchase, I think it says.  MR. GOLDIE:  Yes, absolutely, this is what brings us into the  area of what I call expediency And to which both Mr.  Justice Taschereau and General Washington referred to  that it is often cheaper and more expedient to obtain  lands that are occupied by treaty, importing a  consideration, than by simply making a grant which 275?  Submissions by Mr. Goldie  1 leaves the grantee the problem of dealing with the  2 occupants.  3 THE COURT:  Then perhaps I am struggling too hard to find a  4 consistent application of this case to all the  5 possibilities, but is it your theory that the passage  6 you have just referred to, that the King can grant or  7 convey, would apply only to vacant lands, title to  8 which is in the land, which are not occupied by  9 Indians or do you say that general right applies to  10 all lands occupied or not occupied?  11 MR. GOLDIE:  I was endeavouring to state what I took to be the  12 American view, and what drew my attention to it was  13 the statement at the beginning of that second to last  14 paragraph, " far as respected the authority of  15 the Crown, no distinction was taken between vacant  16 lands and lands occupied by the Indians."  And I  17 contrast that or I place that side by side with the  18 statement of Mr. Merrivale in 1859, when he said we  19 admit of no title but we respect those lands actually  20 occupied by them for which we would pay compensation.  21 I think the words that I would refer your lordship  22 to are those of Mr. Justice Taschereau at -- under tab  23 39 of volume 9 of my friend's book of authorities.  24 THE COURT:  Because I can't put my finger on it at the moment,  25 but seems to me that somewhere in here he says very  26 clearly that title cannot be displaced except by  27 treaty or purchase.  28 MR. GOLDIE:  I might say, my lord, that Johnson and Mcintosh has  29 been cited by people who deny aboriginal title as  30 often as it's cited by people who assert there is an  31 aboriginal claim.  But there is no question about the  32 fact that, in a number of places, he says that the  33 power of alienation is taken away from the Indian  34 peoples, they may only alienate to the Crown.  Now,  35 that, I am sure my friend would say, clearly  36 contemplates a negotiation.  But I think what the  37 Chief Justice is referring to in the parts that I have  38 read, is that in law that distinction does not exist,  39 that the Crown can grant, or as it did in the Royal  40 Proclamation, the Crown can reserve.  And whether the  41 lands were vacant or occupied made no difference in  42 either case.  43 THE COURT:  Just give me a moment to -- no, I just can't quite  44 find it.  But I am sure your friend referred me to it  45 and I have read it before.  46 MR. GOLDIE:  Yes.  Well, it may be that it will come to me  47 before I am finished, my lord, but I just wish to 27589  Submissions by Mr. Goldie  1 bring your lordship's attention to what Mr. Justice  2 Taschereau said at pages 644 and 645.  3 THE COURT:  Yes.  4 MR. GOLDIE:  He, in the preceding paragraph, he refers to a  5 contention that I think was made --  6 THE COURT: I am sorry, whereabouts now?  7 MR. GOLDIE:  I am now in Mr. Justice Taschereau in the Supreme  8 Court of Canada, tab 39 of volume 9.  9 THE COURT:  Yes.  10 MR. GOLDIE:  Of my friend's book of authorities.  11 THE COURT:  Yes.  Page?  12 MR. GOLDIE:  644.  And he first refers to a contention, and this  13 is in the first complete paragraph about a quarter of  14 the way down the page, he says:  15  16 "The contention that the Royal Grants and  17 Charters merely asserted a title in the  18 grantees against Europeans or white men, but  19 that they were nothing but blank paper so far  20 as the rights of the natives were concerned was  21 certainly not then thought of, either in France  22 or in Canada."  23  24 Then dropping down to the last paragraph, he then  25 proceeds to give examples to the contrary in what  26 follows from the introductory words on the contrary.  27 Then if your lordship would go over the page --  28 THE COURT:  I haven't even found that passage.  You said 649?  29 MR. GOLDIE:  644.  I am sorry, my lord.  30 THE COURT:  All right.  That makes a difference.  Yes.  31 MR. GOLDIE:  Does your lordship see the sentence beginning with  32 "the contention", beginning about a quarter of the way  33 down the page?  34 THE COURT:  Yes.  35 MR. GOLDIE:  36  37 "The contention that the Royal Grants and  38 Charters..."  39  40 He is there dealing with a proposition that -- is  41 that a grant from the Crown, in this case the King of  42 France, was nothing as to the rights of the natives,  43 and was merely a settled matter as between the -- as  44 against white men or Europeans.  He says, that was  45 certainly not then thought of.  Then at the bottom of  46 the page he starts with the words "On the contrary"  47 and there is -- he introduces examples.  And then in 27590  Submissions by Mr. Goldie  1 the fourth line down on the next page, 645:  2  3  4 "The King granted lands, seigneuries,  5 territories with the understanding that if any  6 of these lands, seigneuries or territories  7 proved to be occupied by aborigines, on the  8 grantees rested the onus to get rid of them,  9 either by chasing them away by force or by a  10 more conciliatory policy as they would think  11 proper.  In many instances the grantee, or the  12 King himself, deemed it cheaper or wiser to buy  13 them than to fight them.  That was never  14 construed as their right to any legal title  15 whatsoever.  The fee and the legal possession  16 were in the King or his grantees."  17  18 Now, in legal language, that's substantially what  19 General Washington was saying, that only he was urging  20 the policy, the wisdom of treating them rather than  21 dealing with the native peoples by force.  22 Now, I ask your lordship to keep in mind in all of  23 this that we are dealing here with an assertion of a  24 right against the Crown, not a right as against third  25 parties or anything like that, the right against the  2 6 Crown.  27 I am going to be saying to your lordship that in  28 the Mainland colony of British Columbia, the interest  29 of the native people in the areas in which they were  30 in actual occupancy or possession was recognized.  31 THE COURT:  Mr. Rush, are you able to direct my attention to  32 that passage in Johnson and Mcintosh where that is  33 mentioned?  34 MR. RUSH:  I can't at the moment, my lord.  Unfortunately, my  35 copy of Johnson and Mcintosh isn't in our set.  36 THE COURT: I will be glad to see what it says when you get it.  37 My only comment on it, I am almost certain it is  38 quoted in St. Catherines.  39 MR. RUSH:  I am not certain it's quoted in the Judicial  40 Committee but it's quoted in the court below.  41 THE COURT:  Maybe it's not in the Committee —  42 MR. GOLDIE:  I think I know the one that your lordship is  43 referring to but it -- I can come back to that if my  44 friend doesn't beat me to it.  45 THE COURT:  What you're saying is that unless one is concerned  46 with lands which, after the proclamation, and within  47 its territorial reach, have been reserved for the use 27591  Submissions by Mr. Goldie  1 of Indians, that the Crown has the absolute right,  2 even though occupied by Indians, to convey it to  3 someone who will get a good title as against the  4 Indians and will displace the right of occupancy that  5 the Indians were thought to have had prior to the  6 title being disturbed.  7 MR. GOLDIE:  The Great Reserve gave them, if you will, a legal  8 interest, but in that territory, before the reserve  9 was made, the King had a choice:  To grant to the  10 white people or to reserve for the Indians.  Since his  11 object was to deal with an emergent problem, he chose  12 to contain the whites.  But that, as I read Johnson  13 and Mcintosh, that, nobody disputed his right to make  14 that choice.  Well I shouldn't say nobody disputed, in  15 argument it was disputed.  16 Now, subject to coming back to that again, my  17 lord, I go back to page 39 of my text, and I say the  18 requirement that the property qualification for  19 members of council be 20 or more acres of freehold  20 land is inconsistent with any subsisting native title.  21 See page 2 of both commissions.  Now that reference is  22 to the 20 acre requirement.  Whatever the expediency  23 of making no mention of native title in the Royal  24 Grant of 1849, the failure to make any reference in  25 the commissions and instructions negates any inference  26 that the Crown recognized any such title on Vancouver  27 Island.  Item E, the instructions given Douglas by the  28 Hudson's Bay Company as its agent in 1849 and the  29 experience in New Zealand with respect to Indian  30 title.  31 Douglas was intended to be the pro tern Governor of  32 Vancouver Island.  This was unacceptable and Blanshard  33 was appointed.  Douglas was so informed in Barclay's  34 letter of August the 4th, 1849.  I will refer to that,  35 my lord.  Under tab 59 of the yellow binder is a  36 typescript of Barclay's -- I am sorry, Pelly's letter,  37 and --  38 THE COURT: Should I amend the text?  39 MR. GOLDIE:  Amend the text, please.  40 Pelly was the Governor of the Hudson's Bay Company.  41 And on August 4th he writes to Douglas acknowledging  42 receipt of Douglas's letter of December 5th, 1848  43 which reached London on May 18th.  And then he goes on  44 to say:  45 "You will have seen that by a grant from the  46 Crown Vancouver Island is the property of the  47 Hudson's Bay Company but with the condition to 27592  Submissions by Mr. Goldie  1 sell to any British subject such parts as  2 emigrants may be disposed to purchase for the  3 purposes of settling thereon.  The conditions  4 on which these purchases may be made have been  5 sent by you.  By them, and the grant, you will  6 see that the Hudson's Bay Company are little  7 more than agents for the sale of the lands,  8 mines, et cetera, retaining to themselves  9 l/10th of all the sales all the sales may  10 produce and trustees for the other the 9/10ths  11 to be expended in public purposes for the  12 colony that the government is exclusively in  13 the Crown to appoint a governor-in-council and  14 ultimately a House of Assembly is to be elected  15 by the settleers holding property in the  16 Island."  17 My lord, I am going to emphasize those words that  18 "the government is exclusively in the Crown."  19 Then he continues:  20  21 "From this outline you will perceive that the  22 portion of the capital of the Hudson's Bay  23 Company employed, and those who have an  24 interest in the fur trade under the deed poll  25 have no interest in the island except that  26 portion of it they were in possession of before  27 the Oregon treaty with the United States of  28 America, and whatever additional quantity of  29 land may be required for an establishment for  30 the fur trade."  31  32 I am sorry, that's as far as I go and then I move  33 to page 13.  I just pause there and ask your lordship  34 to note the words "those who have an interest in the  35 fur trade under the deed poll."  That was the, I might  36 call it, the partners agreement, under which those who  37 were admitted to it divided up the profits.  And what  38 he is saying is that the fur trade has no interest in  39 Vancouver Island, except in that portion of it which  40 they were in possession of before the Oregon treaty  41 with the United States of America, and whatever  42 additional quantity of land may be required.  43 Then over to page 13, the third paragraph:  44 "It was proposed to appoint you governor pro  45 tempore of the island but you will see by the  46 public press from the jealousy of some parties  47 and interested motives of others, how next to 27593  Submissions by Mr. Goldie  1 impossible it would have been to give you the  2 situation.  A gentleman, Mr. Blanshard, who  3 from his experience was considered fit for the  4 situation, has been appointed by the Queen  5 governor of island and those adjacent who on  6 his arrival will produce his credentials and I  7 feel confident that you will render to him your  8 best services in carrying out his instructions  9 from the Crown, and in every way assist him to  10 the best of your power.  The Hudson's Bay  11 Company do not intend in any way to invest him  12 with any agency powers but propose to appoint  13 you their agent, quite independent of your  14 situation in the fur trade, to keep registers  15 of all grants or land, to secure reports of all  16 surveys and do appoint people if there are any  17 on the island competent to perform that or  18 other duties which may be required through you  19 will be made all the sub grants to settlers."  20  21 Then in the next page he says:  22  23 "The Puget Sound Association will likewise give  24 you similar authority as far as any land or  25 stock they have on the island.  In fact, you  26 will be the agent for the Hudson's Bay Company  27 and Puget Sound Association, to act as such in  28 all matters that both or either have any  29 interest in that country, except that portion  30 which belongs to the fur trade branch under the  31 Deed Poll.  For these services you will be  32 remunerated by them, to what extent I cannot at  33 the present say..."  34 And so on.  35 The Puget Sound Association was the name of the  36 enterprise which carried on a substantial farming  37 activity in around Fort Vancouver, and it acquired  38 land in the vicinity of Victoria and carried on a  39 farm -- farming activity there.  40 And now Douglas was therefore, told, my lord, that  41 he had no powers of government, and the letter that I  42 have just read he received on December 1st, 1849.  The  43 Board of Management, made up of Douglas, Ogden and  44 Work, to which reference has already been made,  45 remained responsible for the fur trade branch.  Pelly  46 noted, as I have read, that the fur trade branch would  47 be required to purchase land at one pound per acre, 27594  Submissions by Mr. Goldie  1 from which the company received only two shillings,  2 just as any purchaser, if it required land in excess  3 of what it possessed on Vancouver Island prior to the  4 Oregon Boundary Treaty of 1846.  5 At transcript 229, Dr. Lane referred to the speech  6 of Lord Grey on August 24th, 1848, where he referred  7 to placing someone over Vancouver's Island and to make  8 them trustees of the duties of government.  The  9 reference is in her -- under tab 60 there, lines 21 to  10 23.  And also the following, following the blue  11 separator sheet, is the other reference.  12 Now, at that time, namely in August of 1848, it was  13 intended that Douglas would be governor, and as Pelly  14 noted in his letter, that proposed appointment drew so  15 much criticism that it was dropped and Blanshard, who  16 had no connection with the company, was appointed the  17 first governor of new colony.  The powers of  18 government were vested in him.  The consequence of  19 this change was correctly described in Pelly's letter  20 to Douglas of August 4th, 1849, that the government is  21 exclusively in the Crown to appoint a governor and  22 council, and that the company do not intend in any way  23 to invest him, Blanshard, with any agency powers.  24 The trusteeship of the powers of government was not  25 in the hands of Douglas or the Hudson's Bay Company  26 when Blanshard was governor and Douglas as agent of  27 the company negotiated the first 11 of the 14  2 8 agreements.  29 Now Douglas Douglas was a Chief Factor of the  30 Hudson's Bay Company and as such he had an interest in  31 the profits of the fur trade branch of the company's  32 business.  That is to say, he had an interest under  33 the deed poll.  He was also a shareholder and as such  34 he had an interest in the success of the Puget Sound  35 agricultural company, although he wasn't an officer.  36 Prior to the Oregon Boundary Treaty Douglas, on behalf  37 of the fur trade branch and the agricultural company,  38 had marked out some 20 square miles on Vancouver  39 Island.  This block of land almost completely  40 surrounded the actual post at Fort Victoria.  It  41 appears that in 1851, on the instructions of the  42 company, this block of land was reduced in size to  43 some six square miles.  Its disposition by the  44 Hudson's Bay Company, without regard to the wishes of  45 the colony, gave rise to a dispute, the history of  46 which is set in papers in connection with Crown lands  47 in British Columbia tabled in the B. C. legislature in 27595  Submissions by Mr. Goldie  1 1881.  And the relevant extracts from that, my lord,  2 are under tab 62.  And I say the relevance here is  3 Douglas's assertion that the Hudson's Bay Company paid  4 nothing for the fur trade reserve lands.  And that  5 appears at page 23.  And this is an extract from one  6 of Douglas's despatches, and there is a -- quite a  7 controversy had arisen between Douglas and his former  8 associates, over the right of the Hudson's Bay Company  9 to dispose of lands which it said it owned.  This was  10 after the grant had been revoked, there was a colony  11 on Vancouver's Island, Douglas was the governor, and  12 the -- as I say, there was a real controversy because  13 Douglas had no intention of paying any money to the  14 Hudson's Bay Company for the grounds upon which he  15 intended to erect a public building.  And to introduce  16 the observation that I refer to, I go to the paragraph  17 numbered five, and this is a despatch to the Duke of  18 Newcastle, and it's about two, four, about eight lines  19 down, the governor -- well, I will begin with the  2 0 words:  21  22 "Your grace is well aware of the manner in which  23 my recent application was met for a site for a  24 public wharf and harbourmaster's office."  25  26 That was an application to the Hudson's Bay  2 7 Company.  28  29 "The governor of the the Hudson's Bay Company  30 then instantly repudiated any desire on the  31 part of the company to interfere with the  32 requirements of the public, and I would fain  33 believe that he will now, upon becoming  34 possessed of the real facts of the case, as  35 instantly repudiate the attempt to deprive the  36 government of a piece of ground required for  37 public purposes, and so allotted and marked out  38 in 1858; the more especially is Mr. Berens  39 himself recognizes the reserve in his letter to  40 your Grace of 16th of December, 1858 wherein he  41 says:  'The land upon which Governor Douglas is  42 erecting the new Public Offices has also been  43 represented by that gentleman to be government  44 property; but I have reason to know that it is  45 part of the land held by the fur trade long  46 prior to the grant from the Crown.  The  47 company, therefore, will have a claim against 27596  Submissions by Mr. Goldie  1 the government for the value of the land.'"  2  3 And that's the end of the quotation from the then  4 governor of the Hudson's Bay Company.  And Douglas  5 continues:  6 "In 1859, Mr. Berens admits this land to be in  7 the possession of the local government and  8 simply contends that the company will have a  9 claim for the value of the land."  10  11 Then I drop down now to the last paragraph:  12  13 "The claim for payment of the value of the land  14 which Mr. Berens asserts in 1859, would, I  15 conceive, be perfectly legitimate if the  16 company in the first instance paid for the  17 land, for it would be merely an equitable  18 refund in a case where the company had no power  19 to sell or purchase, but as the company had not  20 paid for it nor any portion of the 3,084 acres  21 dealt with as private property, they cannot, I  22 apprehend..."  23  24 Then it goes on to say, sustain any claim.  25 Now this convoluted business is not to say that the  26 agreements which Douglas entered into and especially  27 the 11 which he entered into when Blanshard was in the  28 colony, are not binding upon the honour of the Crown.  29 They are.  I am going into this to demonstrate that in  30 my submission they do not indicate any acknowledgement  31 on the part of the Crown at the time of aboriginal  32 rights on Vancouver Island of any description.  33 So I say, this thus appears that the Hudson's Bay  34 Company, prior to the Crown Grant of 1849, asserted  35 title to lands on Vancouver Island without reference  36 to Indian title or any aboriginal rights connected  37 therewith.  38 After 1846, the Hudson's Bay Company retained  39 establishments in what had become part of the United  40 States and Douglas continued to have responsibilities  41 with respect to such establishments and the company's  42 claim to the continued recognition of its possessory  43 title by virtue of the Government of Oregon Act of  44 August 14, 1848.  The American government called for  45 treaties with Indians.  That was the situation by law,  46 in the territory in which the Hudson's Bay Company  47 continued to have establishments, and to which it 27597  Submissions by Mr. Goldie  1 asserted it was entitled to compensation for giving up  2 its rights.  3 Paragraph 65, in his letter to Barclay of  4 September 3rd, 1849, Douglas states in paragraph 24 he  5 says:  6  7 "Some arrangement should be made as soon as  8 possible with the native Tribes for the  9 purchase of their lands and I would recommend  10 payment being made in the shape of an annual  11 allowance instead of the whole sum being given  12 at one time" et cetera.  13  14 This recommendation is made prospectively.  It  15 makes no reference to the lands he marked out for the  16 fur trade reserve and appears to be related to the  17 future welfare of the colony.  18 And I refer back in that reference, my lord, to  19 paragraph 22, where Douglas says:  20  21 "According to the instructions of the governor  22 in committee, I have marked out the Hudson's  23 Bay lands according to the boundaries fixed  24 upon when I first visited this part of the  25 island in the summer of 1842.  Immediately  26 adjoining that lot I have marked out a  27 considerable district of Country around Port  2 8 Esquimalt for the Puget's Sound Company."  29  30 And I go to paragraph 66.  Barclay responded  31 with his letter of December of 1849.  Before receiving  32 this letter, Douglas had learned that he would not be  33 governor of the colony. That goes back to the letter  34 he got from Pelly in, I think, December.  35 Blanshard arrived in the colony on March 9th,  36 1850.  Some time before April, 1850 Douglas received  37 his instructions from Barclay and in his  38 acknowledgement of May 16, 1850 details what he did  39 upon receipt of those instructions.  40 Now, the instructions under tab 4-66, first there  41 is a photograph of the -- of the original and then  42 there is a typescript, in which Barclay, whose  43 secretary says:  44  45 "You have in former communications been informed  46 of your appointment as agent of the Hudson's  47 Bay Company for the sale of land, et cetera, in 2759?  Submissions by Mr. Goldie  1 Vancouver's Island, and of the conditions in  2 which the company had resolved to dispose of  3 portions of land to settlers.  It had  4 previously been intimated to you that  5 possession of the land occupied by the Company  6 for the purposes of the fur trade prior to the  7 treaty of July 17th, 1846, was to be confirmed  8 to them without payment, being understood that  9 any additions that it might be necessary from  10 time to time to make thereto should be paid for  11 at the same rate as that sold to other  12 purchasers..."  and so on.  13  14 And the reference is made to the lack of suitable  15 agricultural land and allotment of land to be held for  16 the governor.  He is referring there to the trustee or  17 to the prospectus, and then he goes on to several  18 things relating to the way in which the colony is  19 expected to develop.  20 And then he goes on to say at the bottom of page  21 19:  22  23 "With respect to the rights of the Natives, you  24 will have to confer with the chiefs of the  25 Tribes on that subject, and in your  26 negotiations with them, you are to consider the  27 natives as the rightful possessors of such  28 lands only as they occupied by cultivation or  29 had houses built on at the time when the island  30 came under the undivided sovereignty of Great  31 Britain in 1846.  All other land is to be  32 regarded as waste and applicable to the  33 purposes of colonization.  Where any annual  34 tribute has been paid by the natives to the  35 chiefs, a fair compensation for such payment is  36 to be allowed."  37  38 Then he goes on at the bottom, midway down that  39 page he makes reference to the report of the select  40 committee of New Zealand and he says:  41  42 "A committee of the House of Commons which sat  43 upon some claims of the New Zealand Company  44 reported in reference to native rights in  45 general that 'the uncivilized inhabitants of  46 any country have but a qualified dominion'."  47 27599  Submissions by Mr. Goldie  1 That quotation is one that I have read to your  2 lordship, is from the speech of Sir George Gibbs in  3 the New South Wales House introducing land legislation  4 applicable to New Zealand.  5 He goes on to say:  6  7 "The principle here laid down is that which the  8 governor are already aware, the governor and  9 committee authorize you to adopt in treating  10 with the natives of Vancouver's Island, but the  11 extent to which it is to be acted upon must be  12 left to your own discretion and will depend  13 upon the character of the tribe and other  14 circumstances.  The natives will be confirmed  15 in the possession of their lands as long as  16 they occupy and cultivate them themselves but  17 will not be allowed to sell or dispose of them  18 to any private person, the right to the entire  19 soil having been granted to the company by the  20 Crown.  The right of fishing and hunting will  21 be continued to them..."  et cetera.  22  23 Now that was the instruction which Douglas  24 received and which he acted upon, and in his letter to  25 Barclay of the 16th of May, he said, on page 95:  26  27 "On the receipt of that letter, I summoned to a  28 conference the chiefs and influential men of  29 the Sangees Tribe, which inhabits and claims  30 the District of Victoria, from Gordon Head on  31 Arro Strait, to Point Albert on the Strait of  32 De Fuca as their own particular heritage.  33 After considerable discussion, it was arranged  34 that the whole of their lands, forming as  35 before the District of Victoria, should be sold  36 to the company, with the exception of village  37 sites and enclosed fields, for a certain  38 remuneration, to be paid at once to each member  39 of the tribe."  40  41 Some further light is thrown on that by the letter  42 of one of the witnesses, Mr. Joseph William McKay to  43 Dr. Helmcken some 38 years later.  It was McKay's  44 recollection that Douglas's instructions came from the  45 Home Government although Barclay's letter indicates it  4 6 was the Hudson's Bay Company that had adopted a method  47 of dealing with the natives patterned after that which 27600  Submissions by Mr. Goldie  1 was thought to be current in New Zealand.  I say in  2 fact Barclay quotes from the Select Committee's report  3 of 1844, which in turn quotes with apparent approval  4 the observations of the governor of New South Wales,  5 when introducing a bill to deal with New Zealand when  6 it was a dependency of New South Wales.  7 Now those references I can refer to quite briefly,  8 my lord.  The first one, McKay's letter, is under tab  9 67, McKay says, the first paragraph:  10  11 "The arrangements entered into with the Indians  12 of Victoria and Saanich and Sooke Indian  13 Districts respecting their claims on lands of  14 those districts were made at the instance of  15 the home government.  During Governor  16 Blanshard's incumbency Mr. Douglas was land  17 agent for the Crown lands of Vancouver Island.  18 The then Secretary for the Colonies sent to Mr.  19 Douglas through A Barclay, Esq., Hudson's Bay  20 Company secretary, instructions as to how he  21 should deal with the so-called Indian title."  22  23 And the instructions were embodied in a somewhat  24 lengthy document and so on.  25 Then he talks about how careful Mr. Douglas was  26 and goes on to state in the last paragraph on that  27 page:  28  29 "It was recommended in a subsequent clause that  30 sufficient land to support them be set apart  31 for the use of the Indians and that the Indians  32 be encouraged to cultivate and improve the same  33 after the manner of the civilized people.  Mr.  34 Douglas made no purchase of the country from  35 the Indians.  They were told thaty only such  36 places as they had occupied and improved  37 properly belonged to them.  That in addition to  38 their garden patches and village sites some of  39 the lands contiguous to their villages would be  40 reserved to them and the rest of the country  41 would be open for sale to white settlers."  42  43 And then he talks about the -- well, he says, just  44 as short to readit:  45  46 "You will remember that the districts for which  47 the Indians received payments in blankets were 27601  Submissions by Mr. Goldie  1 the main producers of the Kamass root for the  2 whole surrounding country.  The destruction of  3 this plant by cattle and sheep caused a great  4 loss to the Songhees Sanich and Sooke Indians  5 as it was the most important article of trade  6 which they had to offer in dealing with the  7 neighbouring tribes.  Hence the expediency of  8 giving the above name Indians a valuable  9 consideration for the loss which they sustained  10 in the loss of their Kamass trade.  The  11 Cowichans did not suffer in any way by the  12 settlement of the whites in their country and  13 there never has been any reason which they  14 should have had any payments made to them in  15 respect to their country."  16  17 I say under tab 67 there is also the report which I  18 have referred to your lordship and your lordship can  19 identify the quotation, Barclay's quotation, it being  20 from the speech I say from Sir George Gibbs.  And it  21 is identifiable from the last ten lines of that  22 report.  23 McKay's recollection of what Douglas said is in  24 accordance with the instructions in Barclay's letter  25 that "Only such places as they had occupied and  26 improved properly belong to them".  In his report,  27 however, Douglas states:  28  29 "After considerable discussion it was arranged  30 that the whole of their lands..."  31  32 And I have added the emphasis to that, and I  33 submit that the departure from his instructions in  34 purchasing the whole of their lands was therefore at  35 the instance of the Indians.  36 McKay confirmed that Douglas had said to the  37 Indians just about what Barclay told him to say, but  38 as a result of the discussion, the whole of the lands  39 formed part of the surrender.  The exercise of his  40 discretion in this respect was approved by his  41 superiors in London.  42 Now, my lord, in my submission, Douglas did not  43 purchase these lands either on the instructions of the  44 Crown or on behalf of the Crown.  The 11 were made by  45 while Blanshard was physically present and the  46 colony's governor.  None was made other than with  47 Douglas as "agent of the Hudson's Bay Company on 27602  Submissions by Mr. Goldie  1 Vancouver's Island."  When I say none, I include those  2 in which he was -- made while he was the governor.  3 Incidentally, such a form negates any intention to  4 conform to the Royal Proclamation.  The Colonial  5 Office learned of the transactions only when Blanshard  6 refused to approve accounts of the company, which  7 included consideration paid to the Indians at this  8 time.  The company in turn asserted that it was not  9 the business of the Colonial Office and the  10 consideration paid does not show up on the available  11 accounts.  12 And I make reference there to, understand tab 69,  13 to the letter from Mr. Blanshard of the 18th of  14 February, 1851 to the Colonial Office.  He says in  15 paragraph one:  16  17 "The agent of the Hudson's Bay Company has  18 presented me an account for signature being a  19 voucher of the balance between the the amount  2 0 expended by the Hudson's Bay Company and the  21 colony and the receipts of duties, sales,  22 royalties, etc., collected in the colony."  23  24 If I may pause there, your lordship will recall  25 that under the terms of the grant the Hudson's Bay  26 Company was entitled to recover its expenses, plus ten  27 percent.  2 8    THE COURT:  I am not sure what you're reading from, Mr. Goldie.  29 MR. GOLDIE:  It's a despatch from Mr. Blanshard, as governor of  30 the colony, to Lord Grey, the Colonial Secretary, and  31 it's under tab 69.  It starts off with the words --  32 it's dated 18th of February, 1851.  33 THE COURT:  Yes, I have it.  34 MR. GOLDIE:  And I had read the first paragraph and then he goes  35 on, Blanshard goes on to say:  36  37 "The account asserts that they have expended $2,  38 736 of which $2,130 are for goods paid to  39 Indians to extinguish their title to the land  40 about Victoria and Sooke harbours.  The  41 remainder also for goods paid also to Indians  42 for work done for the colony, provision and  43 amunition, et cetera."  44  45 Now Mr. Blanshard is unhappy because the price  46 charged the colony's account is not the Hudson's Bay  47 Company's cost but its retail price, and the markup he 27603  Submissions by Mr. Goldie  1 says was three times as great as they are in the habit  2 of paying for them.  But, more importantly, he says:  3  4 "Under these circumstances, I yesterday signed  5 an amended copy of the account as a voucher for  6 the goods adding a protest that the balance  7 shall not be considered a true one because I  8 conceive it to be on the other side and to be  9 against the Hudson's Bay Company."  10  11  12 MR. RUSH:  I think for the sake of completeness the balance of  13 the paragraph 2 is relevant to your side line.  14 MR. GOLDIE:  Well, I —  15 THE COURT: I have read the remaining paragraph.  The second full  16 paragraph?  17 MR. GOLDIE:  Yes, yes.  18 THE COURT:  Yes.  19 MR. GOLDIE:  And then he winds up by saying he hopes the  20 Colonial Secretary will lose no time in appointing his  21 successor as his health has been very bad for some  22 months.  23 He has not been able to appoint a council as there  24 is no one on the island above the of the grade of a  25 labourer, except the servants of the Hudson's Bay  2 6 Company.  And he considers them unfit for appointment  27 as magistrates.  28 That letter was transmitted to Pelly, or I should  29 say, extracts of that letter were transmitted to  30 Pelly, and that's the next document under the  31 separator sheet, dated June 4th, 1851.  And the  32 request is for any observations on the subject of the  33 goods paid to the Indians to extinguish their title to  34 the land.  And the extract following is of Pelly's  35 reply of the 12th of June, 1851.  36 THE COURT: I think if you don't mind we will take the  37 adjournment before you get into that.  38 MR. GOLDIE:  Yes, my lord.  39  4 0 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  41 I hereby certify the foregoing to be  42 a true and accurate transcript of the  43 proceedings herein.  44  45  46 Wilf Roy  47 Official Reporter 27604  Submissions by Mr. Goldie  1 (PROCEEDINGS RESUMED AT 3:15)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  I'm sure counsel are aware of what I was told by Mr.  5 Storrow on the street today, that Sparrow was being  6 decided on Thursday.  We'll all look forward -- I'll  7 look forward to receiving the revised version of your  8 submissions, of all of your submissions.  9 MR. GOLDIE:  One or the other of us.  I suspect it may be both.  10 THE COURT:  Yes.  All right, thank you.  11 MR. GOLDIE:  My lord, I was at page 46 of section 4 of part VII  12 of my summary, and I had just got to the point where  13 the Governor, Mr. Blanshard, had approved under  14 protest the company's claim for reimbursement of the  15 moneys that it had expended in acquiring the -- in  16 purchasing the land subject to the agreements that had  17 been concluded up to that point.  The -- and I was at  18 under tab 4-69, I was at Mr. Pelly's letter to the  19 Colonial Secretary of the 12th of June, 1851.  It's  20 page 5 of the documents under that tab, my lord.  21 It's --  22 THE COURT:  Yes.  23 MR. GOLDIE:  Mr. Pelly says:  24  25 "In reply to which I beg to state to your  26 Lordship that, as Mr. Blanshard has resigned  27 the Office of Governor of Vancouver's Island,  28 the Hudson's Bay Company do not consider it  29 necessary to make any remarks on the Extracts  30 referred to, nor indeed do they think it fully  31 within the province of the Governor to inquire  32 into the transactions between the Company and  33 the Natives with respect to the extinction of  34 the Titles of the latter to their lands."  35  36 And the minute that was appended to that made by Mr.  37 Merivale on June the 16th is illuminating.  He says:  38  39 "It seems to me that, whatever the object may  40 have been, the grant of Vancouver Island does  41 not contemplate, nor was intended to  42 contemplate, a continued cognizance by  43 Government of the accounts of the H.B.C. in  44 respect of the conduct of the settlement.  45 After five years, government may dispatch a  46 Commissioner to enquire and certify as to the  47 fulfilment of the conditions of the grant 27605  Submissions by Mr. Goldie  1 respecting the sale of land.  Purchase from the  2 natives seems to be uncontrolled."  3  4 Now, if I may pause there, that is, in my submission,  5 totally at odds with any suggestion that the Hudson's  6 Bay Company was under an obligation to extinguish  7 title or that the Colonial office had recognized title  8 of aboriginal interests on Vancouver Island and  9 expected the company to extinguish those.  Continuing  10 the quote:  11  12 "But it is also quite true, as the Governor  13 states, that the option is given to Government  14 of repurchasing the island in 1859 paying the  15 sums 'thereupon laid out and expended by' the  16 Company.  If therefore the Governor's  17 (Company's) agent applied to Governor Blanshard  18 to vouch an account of the sums expended by  19 them, it is obvious that if he had done so  20 without inquiry or protest, this would have  21 been taken as an admission by Government that  22 such sums had been really expended by the  23 Company, though in fact Government knew nothing  24 about the matter, and this assumption would  25 have been all but conclusive in 1859."  26  27 1859 would be the -- well, as he states, it's the date  28 upon which the island could be repurchased:  29  30 "Governor Blanshard therefore seems to be quite  31 right, and I do not understand the tone adopted  32 by the company in the present letter.  33 I think this should be pointed out to the  34 Company officially, though without entering  35 into any unnecessary controversy, asking at the  36 same time for the account in question.  I think  37 this despatch also points out a difficulty,  38 which I am sorry did not occur to me earlier,  39 as to the appointment of a Governor who is a  40 servant of the Company.  It is plain that his  41 vouchers of sums expended by the Company cannot  42 be taken by Government as authentic and  43 binding."  44  45 My lord, that last reference refers to the fact by the  46 time this dispatch was minuted, Douglas had been  47 appointed the successor of Blanshard.  And then the 27606  Submissions by Mr. Goldie  1 last -- not the last, but the next in this exchange is  2 Hawes, who was the parliamentary undersecretary to  3 Pelly of the 26th of June, and it is in accordance  4 with the suggestion made by Mr. Merivale beginning in  5 paragraph number 2, fourth line:  6  7 "But Lord Grey directs me to observe that in  8 this instance the account of the balance  9 between the Amount Expended by the Company on  10 the Colony, and the receipt of Revenue  11 collected by them in the Colony appears to have  12 been presented to Governor Blanshard by the  13 Company's Agent for signature.  Governor  14 Blanshard may very properly have demured to  15 affixing his (this?) signature without enquiry  16 into the particulars of the Account.  And as  17 the grant of the Island to the Company  18 specifies a contingency on which Her Majesty's  19 Government may retake it from the Company,  2 0 paying to the Company the sum expended by it an  21 account of this description could not be  22 properly vouched by the Governor's Signature  23 unless he had ascertained that the Sums paid in  24 it were actually expended."  25  26 My lord, I point out there that what the Colonial  27 office was saying was that if you spent money on  28 settlement matters we can pay you that money but we'll  29 get what your interests are.  Now, that would mean  30 that if the Hudson's Bay Company had acquired  31 interests by virtue of the payments made to the  32 Indians, they would lose those interests if they were  33 reimbursed by the government.  And the -- it will be  34 my submission -- it is my submission that that was the  35 reason why we don't find those payments turning up in  36 the subsequent accounts and why we find the Hudson's  37 Bay Company, after the Colony had been resumed, assert  38 that it had title to property in the downtown Victoria  39 and around downtown Victoria to which it had title,  40 and which it would have lost if these payments had  41 been made -- if it had been reimbursed for these  42 payments by government.  I say the actual wording of  43 the treaties followed a form sent Douglas subsequent  44 to his negotiations.  That is apparent from Barclay to  45 Douglas of August the 16th, 1850:  46  47 "The Governor and Committee very much approve of 27607  Submissions by Mr. Goldie  1 the measures you have taken in respect to the  2 lands claimed by the Natives - you will receive  3 herewith the form of Contract or Deed of  4 Conveyance to be used on future occasions when  5 lands are to be surrendered to the Company by  6 the Native Tribes.  It is a copy with hardly  7 any alteration of the Agreement adopted by the  8 New Zealand Company in their transactions of a  9 similar kind with the natives there."  10  11 And the enclosures:  12  13 "'Form of Agreement for purchase of Land from  14 Natives of Vancouver Island', undated with  15 understanding that village sites and fields are  16 to be kept for own use - liberty to hunt and  17 fish."  18  19 And that's a copy from the whole letter.  And the form  20 of agreement is the last page, and your lordship will  21 find that that form is the -- is the agreement between  22 the Indian tribes or nations of the entire number  23 which extend to 14 in question, including the 11 that  24 were negotiated when Douglas -- before Douglas became  25 Governor.  26 My lord, paragraph 71 of my submission, the  27 history of these agreements demonstrates their local  28 peculiarity.  They have been judicially held to be  29 binding on the Crown, and this can hardly be  30 criticized.  But they do not evidence acceptance or  31 acknowledgement by the Crown of a title to the soil of  32 Vancouver Island which the Crown was obliged, through  33 the Hudson's Bay Company's to deal with prior to  34 settlement.  For its part, the Hudson's Bay Company  35 did gain some advantages with respect to solidifying  36 its claim to the fur trade reserve and it would appear  37 from McKay's letter that there may have been an  38 element of compensation for damage caused by the  39 cattle and sheep of the agricultural company.  40 If I may interject there, in my submission, the  41 principal gain that the company got was the  42 solidifying its claim to the fur trade reserve, and  43 that explains why it never sought reimbursement of the  44 consideration paid to the Indian peoples.  45 A recapitulation of the above is found in point  46 form in the appended note headed "Summary of Vancouver  47 Island Treaties", and I'm not going to refer to that, 27608  Submissions by Mr. Goldie  1  2  3  THE  COURT:  4  MR.  GOLDIE  5  6  THE  COURT:  7  MR.  GOLDIE  8  THE  COURT:  9  10  MR.  GOLDIE  11  12  ]  13  THE  COURT:  14  MR.  GOLDIE  15  16  17  18  19  20  ]  21  22  23  24  25  26  ]  27  28  29  THE  COURT:  30  31  MR.  GOLDIE  32  THE  COURT:  33  MR.  GOLDIE  34  THE  COURT:  35  MR.  GOLDIE  36  THE  COURT:  37  MR.  GOLDIE  38  39  40  41  42  43  44  45  46  47  it is -- it is in part repetitious, but it is a  chronological summary.  Where is it found?  :  It's immediately following, my lord, starts two  pages further on in the summary.  It's headed --  Oh, yes.  :  It's headed "Appendix".  Yes, I see it.  Should it precede this next section  called "Mainland".  :  Well, yes.  There's very little on the mainland  because, in my submission, the interests on the  mainland prior to 1858 was minimal.  All right.  :  And the section on the mainland to complete events  up to 1858, that is to say December 31st, 1857, I say  with respect to the mainland prior to 1858 there is no  basis supporting any aboriginal title in the  territories west of the Rockies.  The report from the  Select Committee on the Hudson's Bay Company of 1857,  makes only passing reference to the mainland and the  Indian peoples resident there.  We noted the  significance of this report is in the fact that a  Parliamentary Committee examined the affairs of the  Hudson's Bay Company in relation to its North American  affairs only a year prior to the creation of the  Mainland Colony.  Now, when we -- that's going to take me directly  to tab number 5, my lord.  Is this report in paragraph 73, it doesn't seem to  be in the tab?  :  It's a fairly lengthy report, and I didn't --  All right.  :  I make reference to it later on.  All right.  :  But I didn't put any excerpts in it at this point.  All right, thank you.  :  That takes me to Section 5 of part Roman VII,  "Aboriginal Interests In The Colonial Period, 1858 to  1871".  And by way of introduction I make this  submission, my lord:  Douglas as Governor of Vancouver  Island since 1851 had, of course, to comment on his  official dealings with Indians in his dispatches to  the Colonial Office.  His firmness and discretion was  favourably noted.  And the balance, my lord, of the tabs in this  volume of the yellow binder relate to the appendix  that I'm not reading, the appendix being the summary 27609  Submissions by Mr. Goldie  1 of the events on Vancouver Island.  2 THE COURT:  Oh, all right.  3 MR. GOLDIE:  And it's in part repetition and part it is -- it  4 fills in some details, but I'm not going to.  5 THE COURT:  All right.  So I'm finished this book then.  6 MR. GOLDIE:  So I'm finished with volume 16.  Now, my lord, I've  7 already pointed out one of the differences between  8 Douglas, the Governor of Vancouver Island, and  9 Douglas, the Governor of the mainland.  In the case of  10 Vancouver Island he was up until he was requested to  11 resign as a condition of accepting the Governorship of  12 the new Colony.  He was the agent of the Hudson's Bay  13 Company.  He wore two hats from 1851 until 1858, and  14 in fact he never lost site of the interests of the  15 Hudson's Bay Company until he did resign.  That's one  16 thing.  The second point that I will be coming to is  17 that when Douglas started out his career as Governor  18 of the mainland he was unencumbered by a legislative  19 council.  On Vancouver Island, Blanshard had noted  20 that in his opinion there was nobody except servants  21 of the Hudson's Bay Company who were fitted to become  22 members of the legislative council, and he didn't want  23 them.  Well, those scruples didn't bother Douglas, and  24 his legislative council on Vancouver Island consisted  25 mainly of either former employees, or employees of the  26 Hudson's Bay Company, not all of whom took kindly to  27 his ways.  But when he came to the mainland, he was  28 his own legislature from 1858 until 1863, and part of  29 the consequences of that will become more evident as  30 we go along.  I was going to refer to the dispatches  31 from Vancouver Island, a selection of which are found  32 under tab 5-1 of volume 17 of the yellow binders.  And  33 they provide some indication of how he dealt with  34 matters at the time he was Governor of Vancouver  35 Island.  The first dispatch is of April the 15th,  36 1852, and he's there commenting on the circumstances  37 which gave rise to retaliatory measures against a  38 group of native people on Vancouver Island where  39 the -- for the alleged murder of a British seaman in  40 July 1850.  He says in paragraph number 3, about  41 half-way down the page:  42  43 "I however informed your Lordship in my letter  44 of the 21st of October last, that the three  45 natives concerned in that murder had been  4 6 executed by their own countrymen, and that we  47 had in consequence renewed peaceful relations 27610  Submissions by Mr. Goldie  1 with the Neweete Tribe; who have since then  2 been remarkably quiet and orderly in their  3 deportment, from whence I infer that the  4 retaliatory measures adapted by Mr. Blanchard,  5 and so vigorously sustained by Lieutenant Lacy,  6 of Her Majesty's Ship "Daphnay" have had a most  7 salutory effect."  8  9 And then he goes on to say:  10  11 "The instructions in your Lordship's Despatch of  12 the 20th, March, 1851, No. 1 Military, in  13 reference to the views, which Her Majesty's  14 Government entertain on the question of the  15 protection to be afforded to British subjects,  16 against the violence of the Native Indian  17 Tribes, will be made known to the Public and be  18 considered as the rule of our future  19 proceedings in such cases.  Every means in the  20 power of this Government will also be exerted  21 to keep the Colonists together and to prevent  22 them from straggling into the Indian Country  23 and forming detached settlements, which from  24 their weakness and isolation, would be greatly  25 exposed to Indian depredations and become a  26 source of disquiet to the Colony."  27  28 Douglas is there stating he would discourage random  29 settlement.  And in paragraph 5 he says:  30  31 "It is obviously (in) the interests and should  32 be the constant study of this Government, to  33 avoid every course that may directly or  34 indirectly lead to dissension with the powerful  35 Indian Tribes inhabiting Vancouver's Island,  36 whose numbers are estimated at 20,000 including  37 women and children."  38  39 Then on page 2 he says starting -- well, it starts at  40 the bottom of page 1:  41  42 "A difficulty which nearly led to a fatal affray  43 with the Songies Tribe, occurred last month in  44 consequence of an attempt that was made to  45 apprehend an individual of that nation, who was  46 accused of having slaughtered several head of  47 neat cattle and sheep, belonging to a Settler. 27611  Submissions by Mr. Goldie  1 Two Indians were, in succession, charged  2 with offence, one of whom was captured without  3 difficulty and brought in by the Officer,  4 intrusted with the execution of the warrant,  5 but in attempting afterwards to apprehend the  6 other offender; who had taken refuge in the  7 principal Songies Village near Victoria, the  8 constable, and his retinu of ten men were  9 surrounded by a temultuous throng of armed  10 Indians who set him at defiance, and were only  11 restrained at the point of the bayonet from  12 rushing in and disarming his party, who were  13 consequently compelled to retire in disorder,  14 without having executed the warrant, and with  15 the loss of two muskets, and a Boat, which  16 remained in the hands of the Indians."  17  18 And then he says as soon as he heard of it he sent a  19 second party to demand the boat and muskets, and that  20 they refused to give up the property, and he says:  21  22 "Before resorting to coercive measures I however  23 resolved to try the effect of a demonstration,  24 and with that view ordered out a few guns, and  25 directed the Hudson's Bay Company's steam  26 vessel, "Beaver", to be anchored abreast of the  27 village, in a position from which it could be  28 attacked to advantage."  29  30 And so on, and there was -- there's much excitement  31 and he said:  32  33 "It being then late in the evening" --  34  35 This is the last paragraph:  36  37 "-- nothing further could be done, and the  38 following morning the Songies chief a well  39 disposed Indian, made proffers of compensation  40 for the cattle that had been slaughtered by his  41 people; which were accepted, and quiet was  42 restored."  43  44 And then he says:  45  46 "I have probably dwelt at undo length on a  47 subject, which may not appear of much 27612  Submissions by Mr. Goldie  1 importance, from a wish to put your Lordship  2 fully in possession of the facts of the case,  3 as well as our proceedings consequent  4 thereupon, and as similar difficulties will be  5 of frequent recurrence.  I would beg the favour  6 of your Lordship's instructions in reference to  7 other cases of the same kind."  8  9 And then he emphasizes that he would like to have the  10 navy around.  And the comment of the Colonial office  11 is on page 4, and he says the -- Merivale's minute  12 says:  13  14 "To give orders from hence as to the conduct to  15 be (observed?) towards the Indians in  16 Vancouver's Island seems rather unlikely to be  17 of much service.  If the colony is to maintain  18 itself, as was the condition of its foundation,  19 the local government must needs to be left to  20 its discretion as to the dealings with the  21 natives in the immediate neghborhood of the  22 settled parts, although distant excursions  23 against them may be discouraged, as they were  24 by Lord Grey's despatch of 5th November last.  25  26 And then the comment of Sir John Pakington was:  27  28 "Acted upon Mr. Blackwoods minute, and in  29 writing to the governor approve of the firmness  30 and good judgment shewn in the affair with the  31 Songies Indians -- adding that I must leave the  32 mode of dealing with the Native Tribes to his  33 discretion, trusting to his disposition to  34 cultivate friendly relations with them as far  35 as possible . "  36  37 And the dispatch of the 2nd of August, 1852, from  38 Pakington to Douglas reflects that decision on the  39 part of the Colonial office.  And the dispatch of the  40 2nd of March, 1853 Douglas states in paragraph 5:  41  42 "I beg to assure you that I shall be careful to  43 avoid collisions, and as far as may be possible  44 to cultivate the friendship of all the Native  45 Tribes."  46  47 And then the next dispatch is Douglas to Newcastle of 27613  Submissions by Mr. Goldie  1 the 28th of July, 1853:  2  3 "I have much satisfaction in communicating for  4 the information of Her Majesty's Government,  5 that this Colony continues in a state of  6 profound tranquillity.  No difficulty of a  7 serious nature has occurred with the Natives  8 for many months past.  Charges have been  9 brought against several native labourers, and  10 one native has lately committed to Jail, for  11 assaulting, with a reaping hook, and wounding  12 in the heat of passion a white man, during a  13 quarrel."  14  15 And so on:  16  17 And the offenders be punished according to law,  18 without exciting any ill feeling, in the minds  19 of the Natives at large, who appear to have  20 approve, and feel the justice of all the  21 proceedings connected with those cases."  22  23 And then two paragraphs down he says:  24  25 "In reference to the management of the Indians I  26 would remark to your Grace, that there is a  27 subject, connected with that duty, which has  28 caused me no small degree of anxiety, this is  29 the settlement of their domestic feuds, for  30 like all barbarous nations they levy war and  31 destroy each other, whenever any cause of  32 difference exists, and such pretexts are seldom  33 wanting.  This is a state of things  34 inconsistent with their present position as  35 inhabitants of a British Colony, but heretofore  36 I have not attempted to interfere except in the  37 character of arbitrator, and for this reason,  38 that where there is no positive law to protect,  39 the law of nature gives the right of self  40 defence, and whether acting as individuals, or  41 collectively as nations, the right of punishing  42 injuries to persons or aggressions on the Tribe  43 at large.  Having no power to protect it would  44 have been unjust to punish, and unwise to  45 involve, the government in questions of which  46 we could learn neither the merits nor the true  47 bearings, and which possibly were in accordance 27614  Submissions by Mr. Goldie  1 with the laws of natural justice."  2  3 There is an asterisk in the typescript there, and  4 apparently that reflects the way in which the minutes  5 were done, because the minute on page 4 is Mr.  6 Blackwood's question "Approve the Governor's discreet  7 view", Mr. Merivale, "Certainly".  Your lordship will  8 see when we come to the mainland Colony that Douglas  9 felt no hesitation about stating at the outset that  10 the native peoples, as well as the miners, were to  11 abide by British law.  And then there's a further  12 minute at page 5, and it's Merivale again, paragraph  13 2.  He's asking what -- what conditions might affect  14 the company's licence to trade, and he says in the  15 latter paragraph:  16  17 "For my own part I believe that whatever their  18 demerits, the Company had one merit that is  19 that of systematic dealing with the natives;  20 instead of the mere caprice of ordinary  21 settlers:  and to this is owing the general  22 absence, in their territories, of anything like  23 the fearful massacres and fightings of which we  24 receive occasional accounts from the American  25 side of the frontier."  26  27 And then the dispatch of Douglas to Newcastle of the  28 24th of October, 1853, exploration of the balance  29 of -- or up island, I should say, in his statement  30 that he makes, and the 7th paragraph on the first  31 page --  32 THE COURT:  What page is that, please?  33 MR. GOLDIE:  This is 24th of October, 1853, the first page.  34 It's page 15 of the --  35 THE COURT:  Yes, thank you.  36 MR. GOLDIE:  -- of the sequence.  And about half-way down the  37 page, the paragraph:  38  39 "They were very communicative on all matters  40 relating to the state and condition of the  41 Tribe, and gave a very flattering account of  42 the beauty and fertility of the country they  43 inhabit, with the view of prevailing upon us to  44 form a white settlement there, from which they  45 would commercially derive much advantage."  46  47 Now, that was that part of the coast between Point 27615  Submissions by Mr. Goldie  1 Mudge and Nanaimo.  And then he reports on a large  2 assembly of tribes at a feast in Victoria, his concern  3 about the numbers, and then his dispatch of the 9th of  4 January, 1857, page 18 of the sequence, he says:  5  6 "The native Indian tribes are quiet and friendly  7 in their deportment and intercourse with the  8 settlers.  In fact not a single complaint has  9 been made against any Indian of this Colony for  10 the last two months."  11  12 Now, I have -- and then a last example, my lord, is  13 the dispatch of the 24th of October, 1853, which is  14 the same as the previous one -- or same as one of the  15 earlier ones.  The point of -- I'm sorry, that's not  16 the one I'm -- that of the 9th of January, 1857 is  17 indeed the last one under this tab, and I've read  18 paragraph 3.  19 THE COURT:  On the first tab?  20 MR. GOLDIE:  Under tab 5-1, yes, in the first tab.  21 THE COURT:  Yes.  22 MR. GOLDIE:  Now, I'm not — the minute on that is:  23  24 "The continued good relations with the natives,  25 notwithstanding all that is going on in the  26 neighbourhood on the continent, are really very  27 satisfactory."  28  29 I do not want to paint an overly rosy picture, this is  30 not intended to be representative of all the events  31 which took place on Vancouver's Island between  32 Douglas' appointment as Governor in 1858 when the  33 mainland Colony was created, but what I -- the  34 submission I make with respect to these is that  35 Douglas was dealing with the native peoples there, and  36 he was dealing with them, as we shall see, in the --  37 in an environment where there was a lot of unrest on  38 the mainland on the American side.  39 Going back to my summary, in paragraph 2 I say in  40 one dispatch he referred to future settlement in an  41 area where no Hudson's Bay treaty or agreement  42 existed.  The Indians to whom he spoke welcomed the  43 idea of white settlement.  And that is the dispatch in  44 which he talks about his trip between Nanaimo and Cape  4 5 Mudge.  46 Paragraph 3:  In the Washington and Oregon  47 Territories the warfare between settler and Indian was 27616  Submissions by Mr. Goldie  1 in marked contrast with the situation on Vancouver  2 Island.  And in that regard I have noted the minute on  3 the dispatch of the 9th of January, 1857, which is the  4 first one under tab 5-3.  The second dispatch of the  5 8th of November, 1855 records what Douglas describes  6 as the deplorable state of American Oregon:  7  8 "...which is now involved in a disastrous war  9 with the native Tribes of that country."  10  11 And paragraph 3 he reports on the fate of a detachment  12 of United States troops who are compelled to retire  13 before the Indians and were hotly pursued by the enemy  14 to one of the military stations on the Columbia.  15 Another one was:  16  17 "Surrounded in a mountain pass and nearly all  18 destroyed.  It is also reported that the  19 hostile Indians are making descents by all the  20 passes from the mountains into the settled  21 country.  Those disasters tell seriously  22 against the American cause."  23  24 And so on and so forth.  Then I go down to six lines  25 from the bottom, he says:  26  27 "I am of opinion that there must have been some  28 great mismanagement on the part of the American  29 authorities, or it is hardly credible that the  30 natives of Oregon, whose character has been  31 softened and improved by 50 years of commercial  32 intercourse with the Establishments of the  33 Hudson's Bay Company, would otherwise exhibit  34 so determined a spirit of hostility against any  35 white people."  36  37 And then an extract of his dispatch of 1855, and he is  38 there reporting on his efforts to try to calm things  39 down, so to speak.  He says at the top of page 2 of  40 this particular extract:  41  42 "The object I propose to accomplish by sending a  43 Steam vessel to Puget's Sound is to deter the  44 coast Indians from uniting with the Confederate  45 Interior Tribes, and to extend our protection,  46 as far as available, to any unfortunate  47 settlers, who may be exposed to the fury of the 27617  Submissions by Mr. Goldie  1 savages, but we would of course not engage in  2 hostilities with the Natives, nor take any part  3 in a war, which is not waged with us, against  4 natives however barbarous, that are on terms of  5 amity with our country; and who entertain a  6 high degree of respect for the British name.  7 Another objective in view is the protection  8 of the Hudson's Bay Company's Settlements in  9 American Oregon, which the hostile Tribes, out  10 of a friendly feeling have hitherto respected."  11  12 And he says :  13  14 "I wish by exerting all of our"  15  16 This is the -- the fifth paragraph down:  17  18 "I wish by exerting all of our influence in  19 mitigating the horrors of a cruel war, and by  20 shewing the native Tribes that we do not  21 approve of their conduct, to convince the  22 American population, that their suspicions  23 against the Company's servants are groundless,  24 at the same time, I do not wish to incense the  25 Native Tribes, or to become a party in the war.  26 It is I confess a difficult game to play, but  27 the same course of policy was adopted with  28 success during the Cayuse War, when we were  29 enabled to save many valuable lives, and  30 otherwise to render essential service to the  31 country.  I trust therefore that my proceedings  32 will meet with the approbation of Her Majesty's  33 Government."  34  35 And the last paragraph he says:  36  37 "The Americans are also very unpopular with the  38 Indian Tribes inhabiting our frontier country."  39  40 That would be, I assume, my lord, the mainland:  41  42 "and from a feeling of sympathy with their race,  43 they exult in the successful exploits of the  44 Oregon Tribes."  45  46 Now, the observations in the Colonial office note that  47 the company has been remarkably free of hostile 2761?  Submissions by Mr. Goldie  1 collisions, and the note that is made by Mr. Merivale  2 in the last paragraph:  3  4 "I should have doubted the policy of sending the  5 steamer to Pugets Sound:  but the truth is the  6 company have Establishments there on American  7 ground, which they are endeavouring by treaty  8 with the U.S. government to dispose of, but  9 hitherto without effect.  This a little  10 accounts for the mission of the steamer in  11 question.  I think however Mr. Blackwood's  12 minutes may be followed."  13  14 Et cetera.  And then under the next separator sheet is  15 a typescript of a request from the Washington  16 territory for assistance in repelling the attacks that  17 are going on down there, and this is November the 1st  18 of 1855, and the writer, Mr. James Tilton, Adjutant  19 General and Acting Governor of the Washington  20 Territory, says on the first page of this typescript  21 at the bottom, after requesting arms and one of the  22 steamers, says:  23  24 "Such service as you may render us Sir, will I  25 beg to assure you be mostly appreciated by the  26 Government of the United States, as well as the  27 inhabitants of the territory."  28  29 And then there is a letter from the agent of the Puget  30 Sound Company, Mr. Tolmie, and his P.S. is, and this  31 is a letter addressed to Mr. Tilton:  32  33 "A sound Indian told me this morning frankly,  34 that the Saltwater Tribes, wishing to be on the  35 strongest side, are now puzzled which course to  36 adopt.  I think you right to apply immediately  37 to Governor Douglas for assistance.  The  38 peculiarity and extreme urgency of the case  39 will certainly justify such a course."  40  41 Now, Douglas' response to that is -- is that there  42 is a hundred stand of arms in the Colony and these are  43 in the stores of the Hudson's Bay Company:  44  45 "I have made a purchase of fifty of these, all  46 that can be spared, for your service, and now  47 forward these by Captain Hunt, under 27619  Submissions by Mr. Goldie  1 consignment, to Dr. Tolmie, who will arrange  2 with you about their delivery.  3 I have also secured ten barrels of gun powder  4 and a supply of ball."  5  6 And so on.  So that -- and then his letter to Tolmie,  7 who of course was a colleague of his, is found under  8 the next separator sheet.  It's dated November the  9 5th, 1855, and he says:  10  11 "The information in your letter is startling.  12 There appears to be a determination on the part  13 of the Indians to unite for the destruction of  14 the white settlements, making thus a war of  15 race.  16 There must be some deeply and generally felt  17 grievance at the bottom of that movement.  18 No other cause could so firmly unite the  19 jarring elements existing among the native  20 Tribes.  What do the troops mean by retiring  21 before the Indians?  They must dare every thing  22 or the savage will fancy himself invincible,  23 and put his feet on our necks."  24  25 And then he states what he has done in response to the  26 request from Washington, and at the next document is  27 the 19th of May, 1856, Douglas to Labouchere, who at  28 the time was the Colonial Secretary, and he talks  29 about a peace from Governor Stevens.  He says:  30  31 "I once more advanced funds out of my own  32 private fortune for the purchase of supplies to  33 the amount of 3535 dollars."  34  35 And:  36  37 "The war does not appear to progress at present;  38 there is a very large force of Americans in the  39 field; acting however chiefly on the defensive,  40 instead of pushing vigorously into the Indian  41 country and forcing the Indians either to give  42 battle or to yield."  43  44 And then at the bottom of the page:  45  46 "I have since taken the precaution of issuing an  47 order, warning all British Indian Tribes, not 27620  Submissions by Mr. Goldie  1 to visit the American Coast, during the  2 continuance of the present Indian war, without  3 having a written permit from me, which the  4 American authorities have promised to respect,  5 and giving them notice that this Government  6 will not otherwise interfere on their behalf,  7 should they be seized by the United States  8 ships of war, on or near the American  9 Territory."  10  11 And they -- that provides your lordship with a sense  12 of the -- of the environment that existed on the  13 mainland on the American side of the line leading up  14 to the gold rush in 1858, which actually started in  15 1857.  I say in paragraph 4 --  16 THE COURT:  I see it's four o'clock.  Do you want to adjourn?  17 MR. GOLDIE:  Thank you, my lord.  18 THE COURT:  All right.  How are we getting along?  19 MR. GOLDIE:  I answer that question in the sense in which I  20 think your lordship asked it.  I'm virtually on time,  21 my lord.  22 THE COURT:  Oh, all right.  Do you plan any evening sittings  23 this week?  24 MR. GOLDIE:  I was going to -- we were going to reassess -- I  25 was going to reassess that tonight, but I think I  26 should put in the -- is your lordship free sitting on  27 Wednesday?  I should put in a request now for sitting  28 on Wednesday.  2 9 THE COURT:  All right.  If that's convenient?  30 MR. RUSH:  We can't say at the moment, my lord.  31 THE COURT:  All right.  Well, tentatively, we'll see if we can  32 put in a couple of hours Wednesday evening.  What sort  33 of hours do you want to sit tomorrow?  34 MR. GOLDIE:  Nine-thirty to -- I forget what time we usually  35 stop, five o'clock.  36 THE COURT:  Usually four-thirty, but sometimes we stay longer if  37 we're out of schedule, if that's convenient for --  38 MR. GOLDIE:  That's convenient for me, my lord, nine-thirty to  39 four-thirty, with leave to continue for a few minutes.  40 THE COURT:  Yes, all right.  Do counsel want to sit on Friday  41 morning?  42 MR. GOLDIE:  Yes.  43 THE COURT:  I can sit from nine until eleven, I think.  44 MR. GOLDIE:  We're assuming that that's available, my lord.  45 THE COURT:  Yes, all right.  Nine-thirty tomorrow morning.  46 THE REGISTRAR:  Order in court.  Court stands adjourned.  47 27621  Submissions by Mr. Goldie  1 (PROCEEDINGS ADJOURNED)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein transcribed to the  6 best of my skill and ability  7  8  9  10    11 Graham D. Parker  12 Official Reporter  13 United Reporting Service Ltd.  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


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