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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-15] British Columbia. Supreme Court May 15, 1990

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 26563  Submissions by Mr. Plant        1  Vancouver, B.C.  2 May 15th, 1990  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia, this  7 15th day of May, 1990.  Delgamuukw versus Her Majesty  8 the Queen, at bar, my lord.  9 THE COURT:  Mr. Plant.  10 MR. PLANT:  My lord, there is one minor matter arising out of my  11 submissions yesterday.  When I said in the context of  12 my submissions concerning the plaintiffs' pleadings  13 that I would make reference, or I made reference to a  14 statement which my friend Mr. Grant had made during  15 argument when he said:  Quite frankly the Babine are  16 Wet'suwet'en.  I wanted you to just make a note of the  17 transcript reference, if you wouldn't mind, in the  18 context of Part II, section 2.  19 THE COURT:  I'm sorry.  It's in Part II, section 2?  20 MR. PLANT:  Yes.  It was in the context of my submission on the  21 pleadings and the characterization of the plaintiffs'  22 case.  Somewhere around page 19 is where I made the  23 submission about the difficulty with the  24 jurisdictional claim.  And I did make reference to a  25 statement which Mr. Grant had made in argument.  The  26 statement is that the Babine are Wet'suwet'en.  And  27 the transcript reference is 24832.  That's the page.  28 That's Volume 326, and it's around about line 24.  2 9 THE COURT:  All right.  Thank you.  Well, while we're cleaning  30 up yesterday's debris, I looked very briefly, and this  31 morning I came across a passage, and I'm sorry I  32 didn't get the date.  I'm going to have it printed.  33 But I think it was February 1988 in the course of  34 submissions leading to the reasons for judgment I had  35 given at that time Mr. Grant really said the  36 plaintiff's position is that they seek a declaration  37 of their aboriginal rights, and that it would be for  38 the court to define those rights.  He said they may  39 include ownership or they may include jurisdiction or  40 they may include something else.  That it's a matter  41 of definition rather than that we're seeking ownership  42 and jurisdiction only.  43 Now, I haven't found it, but I think there's  44 another clearer statement by Mr. Rush to the same  45 effect, and that's what I wanted to say again that at  46 least the course of the trial suggests that the --  47 that it is not an all or nothing proposition. 26564  Submissions by Mr.  Proceedings  Plant  1  2  3  4  MR.  PLANT  5  6  7  THE  COURT  8  MR.  PLANT  9  10  11  12  13  14  15  THE  COURT  16  MR.  PLANT  17  18  19  20  21  THE  COURT  22  23  MR.  PLANT  24  25  THE  COURT  26  MR.  PLANT  27  THE  COURT  28  MR.  GRANT  29  30  31  32  33  34  THE  COURT  35  MR.  GRANT  36  THE  COURT  37  MR.  GRANT  38  THE  COURT  39  MR.  PLANT  40  THE  COURT  41  42  43  MR.  PLANT  44  MR.  GOLDI  45  THE  COURT  46  47  MR.  GOLDI  Now, as I say, you've got lots of time to persuade  me otherwise, Mr. Plant, but that seems to me to be  what the course of the trial indicates.  Well, if I can just say this, my lord, my submission  yesterday was directed to the question of what claim  can be supported on the pleadings.  Yes.  And as to what counsel have said ought to be  inferred from the pleadings.  That is really a matter  of argument, and it certainly is a matter that the  plaintiffs have argued at some length, and we are  going to argue it again when it comes time to address  the question in the larger sense.  That is beyond just  the pleadings what can your lordship do in this case.  Yes.  I haven't found the passage where Mr. Rush is  reputed to have said what he said.  I have found the  passages that your lordship has just made reference  to.  I've also found passages from 1987, June of 1987,  I think Volume 28 or 29 in the transcript.  I have no doubt Mr. Rush said very clearly up in  Smithers in June of '87 that it was all or nothing.  That's my recollection too from having seen the  transcript.  I'll leave it at that, if I may, my lord.  Yes.  All right.  It is an issue that we'll be returning to.  All right.  Mr. Rush -- if I may say on that point, Mr. Rush and  I discussed it, and your recollection is our  recollection as well.  And we are going to find that  reference of Mr. Rush's as well.  So I think your  characterization of my statement of February of '88 is  correct.  No doubt about that.  I read it this morning.  Yes.  And I even thanked you for such a clear statement.  Sometimes it happens, my lord.  Thank you.  I was in part II section 3 of the submission and --  Oh, just before you get launched, Mr. Plant, can I  ask what Saturday was it that Mr. Goldie mentioned  that we might consider spending some time here?  :  The 26th.  E:  The 26th I believe, my lord.  :  That's not this Saturday, it's the following  Saturday.  E:  That's correct.  I think we were, I think it was 26565  Proceedings        1 pointed out to us that this coming  Saturday is a long  2 weekend.  3 THE COURT:  Yes.  4 MR. GOLDIE:  And the Saturday that we propose then is Saturday  5 the 26th.  6 THE COURT:  Yes.  Well, I'd like to say, notwithstanding the  7 long weekend, if everyone else found it more  8 convenient I would rather sit this coming Saturday  9 than the following Saturday, but it's not a matter of  10 the greatest importance.  11 MR. GOLDIE:  Yes.  The alternative that we had looked at is  12 Saturday the 2nd of June.  13 THE COURT:  Well, even that would be better, although — well,  14 it wouldn't really.  I have to fly east the next day  15 and I really would like to have a day off somewhere in  16 here.  17 MR. GOLDIE:  I'll consider that, my lord.  The scheduling is  18 such and the people involved is such that --  19 THE COURT:  Yes.  20 MR. GOLDIE:  That we had other reasons for not selecting the  21 19th.  I think the reminder about the 19th came  22 from -- from people on our staff and not from counsel.  23 THE COURT:  Yes.  Well, I understand.  If it can be arranged  24 that we sit this Saturday rather than the following  25 Saturday I'd be grateful, but it isn't a matter --  26 MR. GOLDIE:  I'll take out Saturday the 26th then, and if we sit  27 on the 19th it will be in place of that, or if we  28 cannot arrange the 19th we'll plan on the 2nd.  29 THE COURT:  I don't think I want to sit on the 2nd.  I just  30 don't think I should.  I have to fly all day  31 Saturday -- Sunday, rather, and sit for the rest of  32 the week in Halifax and fly back and resume here.  I  33 think I should take a day off in there somewhere.  34 MR. GOLDIE:  I take your lordship's point.  We'll look at our  35 timetable and see what we can do about it.  36 MR. GRANT:  My lord, was it planned you would be sitting on the  37 1st?  38 THE COURT:  I can sit for a couple of hours.  If we start at  39 nine I can sit until eleven.  On the 1st, on the Friday.  Thank you.  Mr. Plant.  I had reached page 36 of section 3.  I have a couple  4 0  MR. GRANT  41 THE COURT  42 MR. PLANT  43 of  4 4 THE COURT  4 5 MR. PLANT  4 6 THE COURT  4 7 MR. PLANT  Yes.  -- Points to make in the context --  I'm sorry.  Paragraph 36, did you say?  Part II, section 3, page 36. 26566  Submissions by Mr. Plant  thought you said paragraph 36.  Yes,  1  THE COURT:  Oh, page 36.  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. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  Thank you.  Yes.  Where I am, my lord, is in the middle of a  submission that proceeds on the premise that your  lordship finds that oral history is admissible, and  then issues of weight arise.  There are a couple of points that arise out of  what I said yesterday that I should make before I  proceed with this submission.  The first is this, my  lord:  I made a distinction yesterday between what  I've been calling the adaawk and kugax evidence on the  one hand, and on the other evidence which is oral, an  oral recollection of historical events that may not  have achieved the status of an adaawk.  And I gave  your lordship some examples of what were in my  submission clearly adaawk or kugax evidence, but I may  have left your lordship with an erroneous impression  about the ease or -- yes, the ease with which one can  distinguish among these types of evidence.  And I must  say that there is evidence that makes it difficult to  distinguish or draw a line between where an oral  history is an adaawk and where it becomes something  else.  And I want to make reference to Volume 9 of the  transcript where in cross-examination of Mary McKenzie  there was a discussion about what was adaawk and what  wasn't.  In Volume 9, page 534.  It might be easier if  your lordship had an opportunity to read along.  Oh, all right.  And I can hand up a copy of the transcript.  Thank you.  I think I know the passage to which  you're referring.  Starting at line five.  "Q  A  Q  A  Q  A  Q  A  Q  So just changing this subject slightly now,  the adaawk includes more than just the  history of the House, doesn't it?  Does  that mean it includes the boundaries of the  territory?  Yes.  And that includes songs, names, crests?  Yes.  Nax Nik?  Yes.  Does the adaawk refer to everything that  happens at a Feast?  Yes.  And you -- I think it may have been in your 26567  when  this  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Plant        1 evidence, but  case, this court  case that we are involved in right now,  when it's talked about at a Feast, it will  become part of the adaawk too, won't it?  A   Yes.  It will be part because all the head  chiefs of each House are present and  involved in this court case, and it has to  be the part of every House that -- who are  the plaintiffs here, the witnesses, that  has to go on the adaawk of the House.  Q   If there is a meeting of the chiefs that  takes place outside of the Feast Hall, and  say they gather together to decide  something important, will that be also --  will that become part of the adaawks of the  various chiefs?  A   Yes.  Q   Now you testified on Thursday about a  potlatch which -- or rather a Feast, sorry,  which John Smith held while you were away  in residential school in about 1930; do you  remember that?  A   Yes.  Q   And as I recall, you said that that Feast  became part of the adaawk of all of the  Houses that took part, all of the Houses  and clans?  A   Yes."  So at least Mrs. McKenzie has a view of the adaawk  which is broader than the view that I was putting  forward to your lordship yesterday, that events as  recently as 1930 or afterwards could become part of  the adaawk.  There is little magic in the distinction,  except a magic which is created by the submission that  the adaawk by virtue of the sifting process that is  said to occur at a feast has some special status.  And  I've already made the submission with respect to  whether there is any sifting process in fact.  But the  particular point I wanted to make, first of all, is  that the line that I drew yesterday is much harder to  draw in the evidence than I may have suggested  yesterday.  The second point is that the considerations that  I'm speaking about, or about to speak about, and spoke  about yesterday afternoon, the considerations of  weight that I say affect oral history affect all kinds 26568  Submissions by Mr. Plant        1 of oral history, not  merely adaawk.  And they would  2 affect, for example, the Barbeau-Beynon narratives of  3 the Kitsegukla fire, which I referred to in an earlier  4 part of the submission when I said I wasn't sure those  5 were adaawk or not.  Well, whether or not they are  6 adaawk if you are having to consider the weight that  7 should be attached to these oral traditions I say that  8 the criteria that I'm referring to in this part of my  9 written submission are applicable.  10 So I was about to begin with paragraph 70 of the  11 written submission where I say one of the best  12 examples of the problems of interpreting and using  13 oral history relates to the history of the warrior  14 Nekt.  And using the words from the plaintiffs'  15 argument, "of Battle Hill (which) is well told among  16 the Gitksan from the beginning, when Nekt's mother is  17 kidnapped by the Haida, to Nekt's final battle with  18 the Nishga".  And Dr. MacDonald has in an article,  19 which is Exhibit 1188-2, attempted to reconstruct the  20 history of Nekt.  He was a warrior who allegedly lived  21 at the Kitwanga fortress in proto-historic and perhaps  22 historic times.  And this is what Dr. MacDonald has  23 said about the project of historical reconstruction of  24 these kinds of narratives.  25  26 "Formal analysis of the many variants of the  27 Nekt story would undoubtedly produce many  28 conclusions of historical and anthropological  29 significance.  A structural analysis should  30 reveal a set of relationships between Gitksan  31 families and villages as well as wider set of  32 relationships to other groups as far separated  33 as the Haida, the Haisla, and so on.  In many  34 respects the Nekt story is constructed of  35 architypal elements that occur in many other  36 warrior stories from the North Coast.  37 Undoubtedly there was a historical person  38 called Nekt who did have a fort on the Kitwanga  39 hill, but his existence was sufficiently far  40 back in the past..."  41  42 And I pause there to say two or three centuries  43 ago.  44  45 "for the exact localities of his adventures to  46 have been readapted to regional needs.  In some  47 accounts his mother comes from Kispiox.  In 26569  Submissions by Mr. Plant        1 others, she is  from Kisgegas or from a Nass  2 River village.  Stories also vary as to where  3 Nekt resettles after he leaves the Ta'awdzep at  4 Kitwanga and even to the place where, and the  5 method whereby, he is finally killed."  6  7 My lord, the work of Dr. MacDonald and his  8 eminence as an anthropologist and archeologist was the  9 subject of favorable comment from plaintiffs'  10 witnesses and defence witnesses.  Even Dr. MacDonald  11 has here acknowledged the great difficulties one  12 experiences in attempting to reconstruct an accurate  13 picture concerning the events of this individual who's  14 said to have lived in the proto-historic and perhaps  15 even historic period.  Dr. MacDonald faced this  16 difficulty even where there was, as there is in the  17 case of Nekt, archeological evidence available to  18 "independently verify" the Nekt story.  And the  19 archeological evidence is the dig at the Kitwanga  20 fort.  21 I say, moving from the example of Nekt, that  22 perhaps in the context of this case the most telling  23 evidence, or lack of evidence, corroborating the oral  24 histories is the failure of any archeologist, from  25 Harlon Smith down to Sylvia Albright, to find either  26 Temlaxan or Dizkle.  27 And Mr. Willms will be dealing with that in the  28 section of the argument later, my lord, in some  29 detail.  30 I say, that apart altogether from the rigours of  31 the law of evidence, the evidence of oral histories  32 which the plaintiffs have led fails to meet the  33 rigours of the discipline of ethnohistory.  34 And really in this context the principal witness  35 of the plaintiffs is Susan Marsden, who was called by  36 the plaintiffs, as I set out here in the extract from  37 the submission or the introduction to her evidence.  38 She was called as an:  39  40 "expert witness to give opinion evidence on the  41 history of the Gitksan and, as an aside, to the  42 extent that it is relevant, and related groups,  43 based on their oral histories or Adaawk,  44 including opinion evidence on the history of  45 the migrations of the Gitksan, the major  46 historical events -- and I use that word in  47 terms of oral history -- major historical 26570  Submissions by Mr. Plant 1                   events, both pre  and post contact and the  2 development of the laws and the socio-political  3 institutions, through their history."  4  5 Now, Ms. Marsden's project, in effect, was to be  6 described as an internal chronology of the adaawks.  7 There is reference to external verification, but I  8 will come back to the extent to which there really was  9 a reference.  10 I have now in this part of my summary summarized  11 Ms. Marsden's credentials and the fact that she was  12 adopted into a Gitksan House, and that her ex-husband  13 and children, and her father-in-law and mother-in-law  14 are all Gitksan.  15 In her cross-examination on qualifications, Ms.  16 Marsden acknowledged she was not an anthropologist and  17 she took the position, if I can put it that way, that  18 the study of oral history, and these are her words, I  19 believe, "is not considered one of the subjects in  20 anthropology".  21 I don't actually think those are her words, but I  22 better just check.  No.  This reference here is in the  23 yellow book, and I won't take your lordship to it, but  24 the question was:  25  26  27 "Q   And, in fact, it's your view that the  28 study of oral history is not considered one  29 of the subjects in anthropology?"  30  31 Her answer is:  32  33 "A   Not as a subdivision of anthropology.  34 However, anthropologists have looked at the  35 oral histories and as you saw this morning,  36 realized that there was meaningful  37 historical content in them and they have  38 worked with them in varying degrees, once  39 they become anthropologists, but not as  40 part of their training in anthropology, to  41 my knowledge.  42 Q   So that the study of oral history is not  43 considered by you to be one of the subjects  44 in anthropology?  45 A   I didn't -- I said it's not available."  46  47  MR. GRANT:  Well, there's a further explanation. 26571  Submissions by Mr. Plant 1  MR. PLANT:  Yes.  It goes on for  the following page and --  2 MR. GRANT:  Just the next answer clarifies what she meant.  3 MR. PLANT:  Well, your lordship can read that page, and the  4 whole of the next of the page.  It all winds up with  5 line 25 on the next page.  That's page 16976 where she  6 says:  7  8 "A   Yes, as long as you take the word subjects  9 as a -- in the sense of pursuing it as a  10 branch of anthropology.  It's been dealt  11 with by anthropologists but you can't apply  12 to take a PhD and specialize in the study  13 of oral history as history."  14  15 And over the page to page 39 Ms. Marsden said that  16 the field of oral history was "something that's  17 starting", and she alleged that "there aren't writings  18 on oral history except for Vansina".  But later in her  19 evidence she admitted that she had read Dr.  20 Cruickshank's, or had seen at least, and perhaps had  21 also read, Dr. Cruickshank's book or critical  22 bibliography Approaches To The Analysis Of Oral  23 Tradition.  And that's Exhibit 1051-2, my lord.  But  24 that when she had seen that that was after she had  25 prepared her opinion report several months before  26 giving her evidence.  And I suggest that perhaps Ms.  27 Marsden first became aware of this bibliography after  28 it was referred to in evidence by Dr. Daly and  29 described it in these terms.  He said:  30  31 "...there's been a collection of them made by  32 Dr. Cruickshank at the Department of  33 Anthropology at UBC, and she has done an  34 annotated bibliography of most of the major  35 sources, and there must be a couple of hundred  36 titles on that list."  37  38 Well, contrary to Ms. Marsden's contention, in my  39 submission, oral history was admitted by other of the  40 plaintiffs' witnesses to be clearly a "recognized  41 subject in the field of anthropology".  And if your  42 lordship reviews the evidence given by Ms. Marsden in  43 her cross-examination on qualifications what you will  44 find is that while certain propositions were put to  45 her with respect to what others have said about the  46 use to which oral history may be put, she was almost  47 completely unfamiliar with the literature that was 26572  Submissions by Mr. Plant 1            being referred to.  Ms,  Marsden disagreed with the  2 proposition that some kind of independent verification  3 is required before oral traditions can be accepted as  4 historical accounts.  5 And I do wish to take your lordship to the  6 references in connection with this paragraph of the  7 submission.  And that would be in II/3-76.  The  8 extract begins on line 34 of this page with Mr. Willms  9 reading an extract from a work of Dr. Trigger's, which  10 I referred to and quoted from yesterday.  And Mr.  11 Willms says:  12  13 "Q   You accept that, don't you?  14 A   Not entirely, no.  15 Q   So it's your view that even in the absence  16 of independent verification, that you can  17 say that traditions can be accepted as  18 accurate historical accounts?  19 A   I think there are internal, there are ways  20 of analyzing them internally.  If you have  21 a version collected in 1898, another one  22 collected in 1915, another one collected in  23 1970, in different parts of the north coast  24 area, and if they all have the essential  25 elements, you have to begin to assess them  26 as something other than figments of  27 people's imagination."  28  29 Now, so what we have is a project that is  30 primarily a project attempting to chronologize this  31 corpus of material, but on the basis of internal  32 matters only, with the exceptions that I will get to  33 in a minute.  I say that not surprisingly, given this  34 point of view, some of Ms. Marsden's conclusions can  35 only be reached by ignoring independent verification.  36 The first example that I want to spend a moment on  37 is the adaawk which mentions bows and arrows.  Now,  38 this should be in the next pages of the same tab in  39 the yellow book, my lord.  Pages three, four and five,  40 which are Exhibit 1043-1, consist of what I understand  41 to be Ms. Marsden's summary of the adaawk which begins  42 on page six of the tab.  And it's the second full  43 paragraph of this adaawk that reads:  44  45 "After a time, a fight broke out, because of  46 the gambling.  They uttered challenges and then  47 began to shoot arrows; they used barbed and 26573  called  k'  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Plant        1 pointed spears  yeen, and they fought  bitterly.  They had all sorts of weapons, each  man his own.  A good many used only bows and  arrows, others, the hapallar"  THE COURT  MR. PLANT  THE COURT  MR. PLANT  H-A-P-A-L-L-A-R.  I think that's an R.  H-A-N-A-L-L-A-R.  Yes.  That's an N, is it?  "a weapon made of bone with pointed blade,  club-like.  Some had a stone implement called  hat'esham"  I won't try to pronounce that word.  "held in the hand and wielded in close  fighting.  They fought for many days and tried  to wipe out each other.  All of this was  because of gambling."  Now, this was the subject of cross-examination by  Mr. Willms in the pages from the transcript which  begin at page 13 of the extracts in this tab in the  yellow book, my lord, beginning at line 39.  THE COURT:  Yes.  MR. PLANT:  "Q   Now, just keeping that open, would you turn  to the tab 27 in 1042, which is the  Historical Atlas of Canada, and this is  plate 6, which is something that you  referred to and is consistent with your  opinion; is that correct -- plate 8, sorry?  A   Inasmuch as my opinion covers a certain  limited area, yes.  Q   Yes.  And you know that this plate  represents or purports to represent  cultural sequences from 1000 BC to AD 500?  A   That's right.  Q   And so in terms of BP, that's 3000 BP"  That is Before Present.  "to 1500 BP, correct?  A   Yes.  Q   All right.  A   Give or take a decade."  And then Mr. Willms reads from the text as 26574  Submissions by Mr. Plant 1            follows:  2  3 "During the period from 1000 BC to AD 500 the  4 diffusion of ideas rather than the migration of  5 people appears to have been the major mechanism  6 for cultural change.  Around 1000 BC pottery  7 spread from Asia across northern Alaska to the  8 Yukon coast and from the south to much of  9 eastern Canada.  The bow and arrow also spread  10 rapidly, probably from a number of independent  11 sources."  12  13 Mr. Willms says this:  14  15 "Now, you accept that, don't you?  16 A   Not necessarily, no."  17  18 Then Mr. Willms turns to the adaawk which I've  19 just read, and which Ms. Marsden has dated 6000 to  20 7000 Before Present, and then down at line 41.  21  22 "Now, just referring to the bow and arrows;  23 you will agree with me that if this  24 description in the cultural sequence, plate  25 8, is correct, this adaawk isn't much older  26 than 3,000 years; is that correct?  27 A   I'm not familiar with the work that has led  28 to this conclusion about the bow and arrow,  29 and it's -- as opposed to the work that led  30 to the conclusions that I quoted here.  I'm  31 familiar with the sources of the  32 information and why they say that, and I'm  33 comfortable with the conclusions that I  34 used out of this excerpt.  I don't  35 therefore adopt everything in this atlas."  36  37 Now, my lord, the cross-examination continues.  38 MR. GRANT:  Well, I think it's very germane that my friend refer  39 to that 17266, the answer at line ten, or at least  40 your lordship note it.  41 THE COURT  42 MR. GRANT  4 3  MR. PLANT  I've already underlined it.  And the following sequence.  I'm happy to read the whole page, because it doesn't  44 help my friend.  Line five:  45  46 "Well, let's put it this way:  Assuming that  47 the atlas is correct, then your dating for 26575  Submissions by Mr. Plant 1                       the adaawk is  incorrect?  2 A   Not necessarily.  3 Q   Well, so —  4 A  As I said earlier, when I do the dating, it  5 involves not only putting things in  6 chronology but using a number of different  7 versions, and the weight of the  8 descriptions in the different versions and  9 the assessment of the informant also play a  10 part in my conclusions as to why -- whether  11 I put it in a certain chronology or not."  12  13 Just stopping there for a minute.  We have Ms.  14 Marsden ringing the changes once again on the internal  15 project.  That is to say, all you have to do is  16 analyze the 10,000 year history of the Gitksan to read  17 the adaawks in the right way.  She continues on.  18  19 "Now, the bow and arrow has never used  20 something that I've used as an indication  21 of time-depth, because I'm not sure that we  22 have definitive proof of when the bow and  23 arrow began to be used on the north coast."  24  25 Pausing there for a minute.  That's the beginnings  26 of some indication of the limitations of Ms. Marsden's  27 knowledge of archeology and other fields of  28 anthropology.  29  30 "MR. WILLMS:  All right.  So I can put it this  31 way:  You're unaware of the archeological  32 information on when arrow heads were first  33 located in this area; is that correct?  34 MR. GRANT:  In which area?  35 MR. WILLMS:  The map area.  36 MR. GRANT:  The north coast area generally?  37 MR. WILLMS:  38 Q   Well, whatever that big map is.  Are you  39 aware of any of the archeological  40 information on how old arrow heads are from  41 any of the area that you've mapped on your  42 map, Ancient Times, the arrival about 10000  43 years BP?  44 A   I know that the heads that are commonly  45 called arrow heads are described as being  46 used for spears and as well as arrows, and  47 I'm not sure that they can define by 26576  Submissions by Mr. Plant        1 finding them  in a dig whether they're arrow  2 heads or spear heads.  Microblades, for  3 example, were used for a number of  4 different purposes.  It's not a --  5 MR. WILLMS:  The answer is you don't know?  6 MR. GRANT:  Just hold on.  I think she was in  7 the middle of a sentence.  8 MR. WILLMS:  9 Q   If you do know, please let me know which  10 digs?  11 A   I'm not conversant with the archeological  12 data on that, no."  13  14 Now, the next aspect of the -- there is an  15 additional --no.  I guess I've already done that.  16 The next example I want to refer to, and this is  17 in subparagraph (b) on page 40 of my submission, there  18 was evidence from Dr. Matthews that the year ascribed  19 as the year of the great snowfall might refer to the  20 year without a summer identified as 1816 in eastern  21 Canada.  Ms. Marsden did not consider this simply  22 because for the purposes of her framework, it didn't  23 work, wouldn't work.  24 If your lordship would turn the page in the yellow  25 book to page 16.  I'll only read the extract at the  26 bottom, line 40:  27  28 "Just pausing there; have you ever heard of  29 that, 'The Year Without a Summer'?  30 A   Yes, I have.  31 Q   And had you ever considered that perhaps  32 the 'Great Snowfall' took place at the same  33 time as the 'Year Without the Summer'?  34 A   No.  Because it didn't work, wouldn't  35 work."  36  37 In other words, it wouldn't fit within the project  38 of internal analysis of the adaawks, so Ms. Marsden's  39 response is to ignore the external evidence where it  40 doesn't work, where it won't work.  41 Turning the page over to another example.  This is  42 the example -- the one clear example where Ms. Marsden  43 does rely on or purport to rely on external  44 verification.  And this is Dr. Gottesfeld's dating of  45 a land slide to date the Mediik adaawk.  And more will  46 be said about this later.  But Dr. Gottesfeld in his  47 early work on behalf of the plaintiffs also dated 26577  Submissions by Mr  Carnaby Debris fan.  2  Plant  1  another event, the  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. GRANT  MR. PLANT  THE COURT  MR. GRANT  THE COURT  MR. PLANT  And I think the best way to do this, my lord, is  to refer to page 18 in the yellow book, first of all,  which is the Gottesfelds' draft report.  And then page  19 where in the second and third paragraphs Dr.  Gottesfeld relates -- summarized two separate events.  One is the account of the one-horned mountain goat of  Temlaxan, which in the oral tradition culminates with  the destruction of the people of Temlaxan, and the  landslide on the mountains where the goats invited the  people to feast.  I think my friend may have mischaracterized that  with the snowfall, not the Mediik, didn't destroy  Temlaxan.  My friend mentioned that yesterday.  I  think he's in error on that.  I see.  For the moment I'm reading from Dr.  Gottesfeld.  So the point I wanted to make about this  account is that this is an account which within the  oral tradition mentions landslides.  There was a  separate event which summarized here the -- as being  the coming of the Mediik.  And that is the grizzly  bear adaawk.  And what Dr. Gottesfeld does in his  draft report, as I understand it, is that there is a  suggestion that the one-horned mountain goat adaawk  may be verified by reference to the evidence of the  Carnaby Debris fan.  And that's summarized on page 21.  That is to say the report of Dr. Gottesfeld's initial  research on the Carnaby Debris fan is on page 21 and  then the Chicago Creek Debris fan is the one that has  been the subject of the -- or is related to the  grizzly bear adaawk.  The discussion of that begins on  page 22.  Now, so there are two different adaawks.  And for  the purposes of the present point the one that I'm  interested in is the Carnaby Debris fan.  And there  are -- there was carbon dating done to date the work  that Dr. Gottesfeld did here to try and date this  Carnaby Debris slide.  And the carbon dating data is  later on in the yellow book at tab II/3-81, pages 22  and 23 where -- I'm going to be coming back to the tab  I was at, my lord, but if you can just turn briefly to  page 23 of the material at tab --  81?  3-81.  Yes.  My understanding of the report here is that the  first three numbers relate to the Carnaby Debris fan 2657?  yielding conclusions  that  that  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  Submissions by Mr. Plant        1  debris fan can be dated  to anywhere from about 190 Before Present to something  like 1210 Before Present.  So there's the range.  It  could be as recent as 200 years ago.  And the most distant would be 500 AD -- no.  200 years ago would be 17 -- or 1790.  Yeah.  But the most distant one, 1140, would be 900  years ago.  900 AD  Yes.  Well, roughly speaking, yes.  Yes.  All right.  Now, the point here is simply to -- to take this  external scientific evidence and put it back in the  context of Ms. Marsden's evidence.  And that is done  in the -- back at tab 76 and page 17, which is just  before the Gottesfeld report.  :  Yes.  :  And this again is Mr. Willms' cross-examination of  Ms. Marsden.  The page relates to the Carnaby Debris  fan.  And I'm interested in the answers at the bottom,  line 42.  "Q   All right.  But 250 years ago wouldn't fit,  would it, because that would -- the  mountain goat adaawk comes before Mediik,  doesn't it?  A   That's correct."  So there's another instance of an inability to  correlate the reconstruction of the oral tradition  with the available scientific or external evidence.  Now, I'm not going to refer to the materials in  subparagraph (d) on page 41, but they indicate the  difficulties and disparities between the linguistic  evidence and the evidence of Ms. Marsden.  Turning over the page there is another reference  to linguistic evidence which I do want to take your  lordship to, and that is the very last piece of paper  in the tab 76 that we were looking at.  Here beginning  at line four:  "MR. WILLMS:  Q   Now, I will just put a proposition to you,  and I want you to tell me if you can fit  that into your chronology.  And, my lord,  I'm reading from Exhibit 883, tab 2, page  6.  'The fur trade seems to have spurred 26579  Submissions by Mr. Plant        1 the Gitksan  occupation of the middle Nass  2 and especially the upper Nass and upper  3 Skeena territories.'"  4  5 THE COURT:  What is that from?  6 MR. PLANT:  It's from a report or a treatise by Dr. Rigsby, as I  7 recall.  8 THE COURT:  Thank you.  9 MR. PLANT:  It's not from his expert report in this case, it's  10 from some other work.  11 THE COURT:  Exhibit 883.  12 MR. PLANT:  Yes.  Mr. Willms asks this question:  13  14 "Q   Can you fit into that that in your  15 chronology?  16 A   Can I see that, please.  By the middle  17 Nass, what are you referring to, what is  18 this person referring to?  19 Q   Well, let's make it simple.  Let's say  20 anywhere on the Nass, and anywhere on the  21 Skeena, can you fit -- let me -- I'll just  22 rephrase it:"  23  24 And Mr. Willms restates the quote in these terms:  25  26 "'The fur trade seems to have spurred the  27 Gitksan occupation on parts of the Nass and  28 parts of the Skeena territories.'.  29 So I haven't got upper or lower or middle,  30 just parts.  Can you fit that into your  31 chronology based on the oral histories?  32 A   Not unless you're talking about the very  33 upper reaches of the Skeena River."  34  35 Now, in paragraph 77 I summarize the evidence  36 relating to an example of a contradiction between Ms.  37 Marsden's opinions and those of Marius Barbeau.  And  38 the transcript references there indicate that Ms.  39 Marsden is not prepared to accept, for the reasons  40 that she gives, a reconstruction of the adaawk which  41 was offered by Dr. Barbeau.  42 Paragraph 78 I say that Ms. Marsden often ignored  43 what can only be described as obvious historic clues  44 within oral history.  One example of some interest, my  45 lord, is the example that I've already referred to,  4 6 the bows and arrows example.  And in the first three  47 pages of the material at II/3-76 page three you have 26580  Submissions by Mr. Plant 1            Ms. Marsden's summary of  this adaawk, and it doesn't  2 incorporate the reference to bows and arrows.  3 Another example is the reference in the adaawks to  4 copper shields.  And I do want to ask your lordship to  5 look at this.  We're now at II/3-78.  It's the first  6 page of that tab.  Mr. Willms cross-examined Ms.  7 Marsden.  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  "Q  A  Q  A  THE  MR.  THE  THE  You mean notwithstanding -- you knew that  there is scientific discussion that copper  shields are historic, you knew that;  correct?  Yes.  All right.  Notwithstanding yhat you knew  that there is scientific discussion that  copper shields are historic you did not  when you reviewed the adaawks bring that  knowledge to bear in assessing the date of  what was going on in the adaawk; is that  correct?  In order to do the chronology I focused on  the evidence in the oral histories and the  Duff files and in what the people  themselves said.  It was an internal  analysis.  The only example I suppose I  could say was an exception to that was the  gun, because I guess that's just something  that nobody would argue about."  There are other examples later in her evidence  concerning reference in the adaawks to people with red  hair and the use of soap.  These are, in my  submission, the kind of clues which an ethnohistorian  applying the criteria referred to by people such as  Dr. Trigger in the references I've made would look for  and look to in order to attempt to date the oral  tradition.  Now, Ms. Marsden admitted that she does not take  each adaawk as being literally accurate, and  acknowledged that there are a large number of the  adaawk --  Excuse me, Mr. Plant.  -- Certainly in the proto-historic --  Mr. Grant, would you be good enough to see if you  can pin that map down.  I think that the wind is  rattling it and disturbing the court reporter.  REGISTRAR:  I can get it.  COURT  PLANT  COURT 26581  Submissions by Mr. Plant        1  THE COURT:  Thank you, Ms.  Thompson. Perhaps it can face the  2 wall because we are not using it at the moment.  3 All right.  Thank you.  We blame everything on the  4 reporters.  5 MR. PLANT:  I'm at paragraph 79, my lord, which I've read.  And  6 it's not been irretrievably lost in the flapping of  7 the mylar plastic.  8 THE COURT:  No.  I have it.  9 MR. PLANT:  Paragraph 80 I say, perhaps the best example of Ms.  10 Marsden's expertise as evidence in this case is the  11 difference between the draft map, which my  12 recollection is map one in Exhibit 358-1, the map  13 entitled "Ancient Times", which in its final form  14 reads -- is entitled "Ancient Times - the arrival  15 about 10000 years BP" while the draft map was entitled  16 "Ancient Times - the arrival 10000 BP to 250 BP"  17 indicating perhaps more accurately the range of dates  18 that can realistically be imputed to the oral  19 tradition.  And as we'll be seeing in a later section  20 of the argument that Mr. Willms will be seeing to,  21 it's our submission that based on the evidence the  22 population movement within the north coast area and  23 the claim area, the words in the drafts "to 250 BP"  24 could easily be replaced by the words "to today".  Ms.  25 Marsden's chronologies are devoid of any attempt at  26 independent verification other than the Chicago Creek  27 landslide and, as I say, accordingly are entitled to  2 8 no weight.  29 Now, there is one --  30 MR. GRANT:  That last statement, my lord, I just want to say for  31 the record, that I think that's a mischaracterization,  32 because there is extensive reliance by her on the  33 archeological material at Kitselas as well as the  34 archeological material -- some reliance on the  35 Kitwanga fort.  But the Kitselas archeological  36 material of Copeland was relied and referred to  37 extensively by Ms. Marsden in her evidence.  38 MR. PLANT:  Well, what I have here, my lord, is this statement  39 from Volume 232 at page 16990.  I'm just going to get  40 that.  Yes.  Page 16990, Mr. Willms in  41 cross-examination.  42  43 "Q   I will just ask again:  On a review of your  44 report, you will agree that except for the  45 recent, the relatively recent past, there  46 is very little independent dating, and by  47 that I mean, dating from scientific 26582  Submissions by Mr. Plant 1                       evidence, of  the oral histories that you  2 have used?  3 A   That was not considered to be the focus of  4 my report, information that would  5 independently corroborate this could come  6 from another expert but I have familiarized  7 myself with the opinions of other experts  8 and I feel that archeological information,  9 for example, does corroborate this.  10 Q   That's your feeling, but I am talking about  11 what you actually wrote in your report and  12 not your feeling.  What you wrote in your  13 report does not contain independent  14 verification from scientific evidence for  15 your dating, except for the relatively  16 recent past?  17 A   I could have included it in the report if  18 it had been asked.  19 Q   But it isn't there, is it?  Well, is it  20 there or not?  21 A   No."  22  23 And I'm content with that reference to the  24 evidence, my lord.  25 Now, just a digression for a moment from the  26 thrust of this submission.  Ms. Marsden's evidence at  27 page 17006 of the same volume of the transcript,  28 transcript 232, lines ten to 17, was that as of 1985  29 she had attended 30 feasts.  This was part of the  30 basis for Ms. Marsden offering opinions with respect  31 to the Gitksan social organization.  And it is  32 significant in this context, my lord, that when she  33 gave evidence at trial here she admitted that she had  34 never heard the adaawk of her house recited at a  35 feast.  And her house is the House of Gwinuu.  Which I  36 have spelled here GW-I-N-U-U.  And the transcript  37 reference there is Volume 233, page 17015, lines 28  38 over to the next page, line one.  39 Now, my lord, there is one further and perhaps  40 larger point about the conceptual problem with the  41 project of an internal chronology of the adaawks.  And  42 this arises, or is the subject of the submission in  43 paragraph 81, out of the attempt to link the grizzly  44 bear adaawk to a landslide near Chicago Creek, where I  45 say a number of observations should be made.  First,  46 notwithstanding Dr. Gottesfeld's creative  47 reconstruction of what the Chicago Creek landslide 26583  Submissions by Mr. Plant 1            might have looked like,  and here I want to take your  2 lordship to the material in support of paragraph 81.  3 And it would be in the yellow book in the first page  4 of II/3-81.  And I am starting at line 20 in response  5 to Ms. Mandell's question if you were looking at this  6 event when it happened what would you have heard and  7 seen.  Dr. Gottesfeld says:  8  9 "A  Well, if you could say the mountain from  10 where you were standing, there would be  11 tremendous noise, overwhelming loud noise,  12 a great cloud of material, swaths of  13 forests being cleared as the debris slide  14 came down across the Chicago Creek fan.  15 The -- continuing down Chicago Creek, I  16 envisioned the debris tarring where lots of  17 water was incorporated and debris and there  18 would be this great mud-charged mess of  19 material coming down the valley, great  20 rolled wall of brown material, trees tossed  21 around, just a swath of countryside being  22 cleared that would come towards you, I am  23 sure you would be frightened and run away.  24 That's the time where you make sure you are  25 standing up on a good hill or something."  26  27 Now, that's Dr. Gottesfeld's characterization of  28 the event which Mary Johnson described in her evidence  29 in the extracts from the plaintiffs' argument which  30 are quoted in the following pages.  And I don't think  31 it's necessary to read them, but there is no doubt  32 that the adaawk says that this event was the result of  33 the activity -- it's not a landslide.  It's a great  34 huge bear, grizzly bear that they had never seen  35 before.  A giant grizzly bear.  One capable of  36 uprooting trees.  Of snapping giant trunks.  37 These words here, "the snapping of giant trunks",  38 are the words that appear in Walter Wright's book Men  39 of Madiik, which is Exhibit 898, where the Mediik  40 adaawk also appears.  And at some point he says:  41  42 "At last a bear came out on the river's margin.  43 A bear - but it was unlike any bear the people  44 had ever seen.  A giant grizzly bear; one  45 capable of uprooting trees; of snapping giant  46 trunks as though they were blades of grass.  47 The bear paused and glared at Tum-L-Hama.  Then 26584  Submissions by Mr. Plant 1                   he moved down the  bank and into the river."  2  3 And so on.  4 My point is that while Dr. Gottesfeld may have  5 accurately described a landslide, he did not describe  6 a grizzly bear.  And there is, I say, a large problem  7 at the conceptual level which arises when your  8 lordship is being asked to take the adaawk as  9 historical truth.  And that's on the one hand.  And on  10 the other hand your lordship is being asked to find  11 that there is independent scientific verification of  12 these events.  I say that you can't have it both ways.  13 It's either a landslide or it's a grizzly bear.  14 And that summarizes the point down to about the  15 sixth or seventh line on page 44, but the balance of  16 that I'm going to leave to my friend Mr. Willms.  17 Moving then to paragraph 82, page 45, I say that  18 the best that can be said for Ms. Marsden's evidence  19 requires recognition that she is Gitksan and as a  20 matter of faith has accepted that the oral traditions  21 are true.  Therefore, just as with the Gitksan or the  22 Wet'suwet'en chiefs who gave evidence concerning their  23 oral traditions it's not necessary to find that Ms.  24 Marsden was being untruthful in order to discard her  25 evidence completely.  But, my lord, I say it is clear  26 that in a field where academic training would seem to  27 be an essential prerequisite for informed analysis,  28 she has none, and that her project of chronologizing  29 the adaawks based on a theory of internal  30 reconstruction is fundamentally ahistorical.  Seeking  31 internal consistency alone, I say, she has  32 conscientiously avoided recourse to the independent  33 corroborative evidence which is essential to any  34 attempt to understand history.  Her theory is novel,  35 it's not been subject to academic scrutiny, and for  36 these reasons her evidence and the evidence of oral  37 history as history ought to be given no weight at all.  38 That concludes my submission on that section, my  39 lord.  And the next section of argument is entitled  40 "Onus of Proof and Rules of Construction".  The first  41 part deals with onus of proof.  And I have not heard  42 the plaintiffs to make any particular submission with  43 respect to onus of proof of facts, and for that reason  44 I don't propose to spend any time on that section of  45 this argument, but I do leave it to your lordship --  46 leave it with your lordship for review.  47 And I would go to page 14 where I have a 26585  Submissions by Mr. Plant        1 submission about the  effect which should be given to  2 the case of Nowegijick v. The Queen.  That's  3 N-O-W-E-G-I-J-I-C-K.  Paragraph 20.  4 Nowegijick is an authority for a rule of  5 construction expressed by the court at page 36 of the  6 Supreme Court report in the following terms.  7  8 "...treaties and statutes relating to Indians  9 should be liberally construed and doubtful  10 expressions resolved in favour of the Indians."  11  12 I say that the phrase "relating to Indians" is an  13 important qualification.  And that there is no reason  14 in policy or principle, or authority for that matter,  15 why statutes, including constitutional instruments, of  16 general application should be given a different  17 interpretation when applied to Indians than when  18 applied to other Canadians.  19 Equally important, in my submission, is the fact  20 that the Nowegijick rule of construction operates only  21 where there is ambiguity.  If the statutory language  22 is clear the Nowegijick principle does not come into  23 play.  You do not use the Nowegijick principle to  24 distort otherwise clear language of a draftsperson.  25 Cases in which Nowegijick has being applied  26 include Simon, Sparrow, Claxton, Metlakatla Ferry  27 case, and Bartleman.  All these cases are referred to  28 and relied upon by my friends, with the exception of  29 Sparrow -- and I should add to the list the Horseman  30 case, my lord.  With the exception of Sparrow all of  31 these cases concern the interpretation of treaties or  32 the provisions of the Indian Act.  Sparrow concerned  33 the interpretation of section 35 of the Constitution  34 Act 1982.  And I'll come back to that later, my lord.  35 I do have this submission which really is an issue  36 that hasn't arisen, so far as I can see, on the case  37 law because of the context in which the Nowegijick  38 principle has arisen.  39 I say that the Nowegijick principle or rule of  40 construction has no application to the construction of  41 statutes or other legal instruments in the Province.  42 It is further submitted that with respect to statutes  43 or other legal instruments of Canada after 1871, such  44 instruments cannot be construed, as between British  45 Columbia and Canada to the detriment of British  46 Columbia.  These limitations flow from propositions  47 that I've set out here which really have to do with 26586  Submissions by Mr. Plant        1 the constitutional  relationship between British  2 Columbia and Canada, and Canada's obligations under  3 the Constitution to Indians.  4 And stated here they are, firstly, that after 1871  5 the Province lacked the capacity to make laws directly  6 relating to Indians.  7 And, secondly, that the Provincial instruments  8 which form part of the sequence of events leading to  9 Order-in-Council 1036 of 1938, that is to say the  10 sequence of statutes and Orders-in-Council which lead,  11 form the chain, as it were, from 1871 to the  12 conveyance of reserves were enacted pursuant to  13 British Columbians obligations to Canada under term 13  14 of the Terms of Union.  British Columbia having after  15 1871 no other constitutional responsibility for, or  16 obligation towards, Indians as Indians.  17 Thirdly, that at all times after Confederation  18 British Columbia was entitled to assume that Canada  19 was acting in the full and proper discharge of its  20 obligations to Indians pursuant to Head 24 of Section  21 91 of the Constitution Act.  22 So you have a situation where British Columbia  23 dealing with Canada where Canada has the  24 constitutional obligation for Indians, I say British  25 Columbia is entitled to assume, unless there is  26 compelling evidence to the contrary, that Canada is  27 doing its job.  And for that reason the Nowegijick  28 principle doesn't apply to the statutory instruments  29 of British Columbia.  30 And the next and different point arises out of a  31 submission made by the plaintiffs in Volume 7, Part IX  32 of their summary.  It reappears in Volume 8.  What we  33 have is Volume 8 of their final argument in the  34 context of their submissions on the historical  35 evidence and on the principles of construction of  36 historical materials at pages 78 and 9.  What the  37 plaintiffs say is this:  38  39 "...To the extent that historical documents are  40 records, made by officials of the defendants,  41 of acts of the plaintiffs which the Province  42 now claims had decisive legal significance for  43 the plaintiffs' rights, the plaintiffs submit  44 that the principles of Nowegijick, and other  45 cases, apply.  They apply because these  46 documents, like statutes and treaties affecting  47 Indians, are written by white officials, often 26587  Submissions by Mr. Plant        1 without the  Indians' knowledge or  2 participation, but are said to contain or  3 affect the Indians' legal rights and duties.  4 This, the plaintiffs submit, requires that the  5 documents be construed:  (1) so as to preserve  6 the honour of the Crown by sanctioning no  7 appearance of sharp dealing; (2) so as to give  8 effect to the representations of  9 representatives of the Crown in the way in  10 which they would naturally be understood by the  11 Indians; and (3) so as to resolve ambiguous or  12 doubtful expressions against the drafters and  13 in favour of the Indians."  14  15 So what the plaintiffs are seeking to do is to  16 take the Nowegijick principle which applies to  17 treaties and statutes and import it into the  18 consideration of historical evidence.  And I say that  19 this is mixing apples with oranges.  The plaintiffs'  20 submission confuses two distinct categories of legal  21 materials on the one hand; documents, historical  22 record relied upon as evidence, and (b), on the other  23 hand, legal instruments.  There are a host of factors  24 which bear upon a consideration of historical  25 documents so far as they're tendered as evidence.  In  26 the case at bar all of the parties are relying on the  27 historical record in support of propositions that  28 derive from a consideration of a large number of  29 documents no one of which is likely to be decisive on  30 any particular point.  The historical record is also  31 relied upon by the Province to provide context.  And  32 that is particularly applicable to the Province's  33 argument in the counterclaim.  Historical records, in  34 my submission, as documents carry weight according to  35 the position and the responsibility of the writer; the  36 opportunity for observation; the reason or requirement  37 for the record, and so on.  And that's just the  38 beginning of a list of factors that could come to bear  39 on a determination of the weight of an historical  40 document.  Obviously for the purpose of the inquiry  41 into context some documents will be more important  42 than others.  Few are likely to be critical.  But the  43 court's assessment of the historical record as  44 evidence ought not, in my submission, to be governed  45 by rules of construction which have evolved for the  46 purpose of interpreting legal instruments such as  47 treaties and statutes that create, define or modify 265?  Submissions by Mr. Plant  Submissions by Mr. Goldie  1 legal relations.  2 Those are my submissions in relation to that  3 section of the argument, my lord.  And the next part  4 of the argument will be spoken to by Mr. Goldie.  5 THE COURT:  Okay.  6 MR. GOLDIE:  Does your lordship have the second volume of the  7 yellow --  8 THE COURT:  No.  9 MR. GOLDIE:  — Books?  I'll ask Mr. Plant to hand out the  10 second volumes.  11 I'm going to be dealing, my lord, with Part 1, I  12 should say Part III in Volume 1 of the summary, which  13 is entitled "The Source of Aboriginal Interests".  14 My lord, when we speak of aboriginal rights, title  15 or interests we are not, in my submission, speaking of  16 moral or political entitlements.  We are speaking of  17 those claims, advantages, liberties and immunities  18 possessed by the aboriginal peoples of Canada which  19 are recognized and protected by law.  That is to say  20 we are, in effect, examining the extent to which the  21 aboriginal peoples enjoy a privileged position in the  22 Canadian legal system.  That is to say enjoy claims,  23 advantages, liberties and immunities which other  24 members of the Canadian -- of Canada do not enjoy.  25 I say, the justification for such a position is  26 said to lie in the fact as stated by Mr. Justice  27 Judson in Calder.  And I quote:  28  29 "...that when the settlers came, the Indians  30 were there, organized in societies and  31 occupying the land as their forefathers had  32 done for centuries".  33  34  35 Now, that fact was substantially admitted in  36 Calder.  And whether it's disputed or admitted is  37 immaterial for the purposes of the inquiry that we go  38 into here.  The question is:  By what process may such  39 a fact lead to legal rights?  40 It is submitted that rights become legal rights  41 only when they are given effect within the prevailing  42 legal system.  Aboriginal rights in a legal sense do  43 not pre-date the establishment of legal order.  They  44 come into existence as a result of the establishment  45 of legal order.  46 Now, prior to the assertion of sovereignty over  47 what is now the mainland of British Columbia the Crown 26589  Submissions by Mr. Goldie        1 had no jurisdiction  the territory or its  2 aboriginal inhabitants.  And that has some  3 significance, my lord, when we come to talk about the  4 Royal Proclamation.  5 In 1763 the Crown neither had jurisdiction over  6 British Columbia, nor did it have jurisdiction over  7 the people who lived here at the time, nor did they  8 owe any allegiance to the Crown.  9 I say that although "the Indians were there  10 organized in societies and occupying the land as their  11 forefathers had done" it cannot be said that the  12 activities of the Indian peoples of British Columbia  13 prior to the assertion of sovereignty were carried on,  14 so far as the Crown is concerned, as a right within  15 the legal system emanating from the Crown, and  16 administered by this court and its predecessors,  17 aboriginal rights in British Columbia did not exist.  18 That must be understood in this context, that the  19 society we assume was there, that it had its own order  20 within itself, but so far as the predecessor of this  21 court was concerned they did not exist because it was  22 not part of the system which was administered by the  23 laws of the Crown.  24 THE COURT:  What do you say was the predecessor of this court?  25 MR. GOLDIE:  The Kings Bench or the Queens Bench.  2 6 THE COURT:  Of England?  27 MR. GOLDIE:  Yes.  Or in one particular instance the Superior  28 Courts of Lower Canada.  By the acts of 1803 and 1821  29 there was a criminal jurisdiction conferred upon those  30 courts in respect of what is now the mainland of  31 British Columbia.  32 THE COURT:  All right.  33 MR. GOLDIE:  But those acts in themselves were assertions of  34 sovereignty.  I'm speaking going back beyond that.  35 THE COURT:  Yes.  All right.  36 MR. GOLDIE:  When sovereignty was asserted, and we'll deal with  37 that in a separate section, the native peoples here  38 became subjects of the realm and a legal order was  39 imposed upon a newly acquired territory.  Now, again  40 we'll enlarge on the question of when the legal order  41 does become imposed upon a newly acquired territory.  42 And that depends on whether the territory is ceded,  43 conquered or settled.  But aboriginal rights did not  44 come into existence necessarily.  Any rights which the  45 Indians might thereafter have could be only with what  46 the law of the new regime accorded them.  47 And I make reference there to the case of Warman 26590  Submissions by Mr. Goldie        1 and Francis, my lord.  And the relevant section in  2 that is found under tab III/1-7.  This is a judgment  3 of the New Brunswick Court of Queens Bench.  It is  4 referred to in the Bear Island case.  And I will be  5 referring to it again.  The excerpt is pages 630 and  6 631.  And on page 631 the paragraph one, two, three,  7 four, the last sentence in the paragraph beginning  8 with the words:  9  10 "Following on the Treaty of Utrecht the Micmacs  11 did not remain as a foreign nation (in the  12 international sense) dwelling on British  13 territory, but became British subjects."  14  15 That was the result in that particular case of a  16 colony which was ceded.  Continuing:  17  18 "If a treaty was made with the tribe it was in  19 the nature of a special agreement based on  2 0 goodwill and expediency made by the Crown with  21 a body of inhabitants."  22  23 Then the reference, and then the last sentence:  24  25 "As subjects of the Crown they came under the  26 law of the country, and any interest they might  27 thereafter have in land was only what the law  28 of the new regime afforded them."  29  30 Now, that conclusion, in my submission, applies  31 irrespective of whether the aboriginal rights depends  32 on "treaty, executive order or legislative enactment".  33 That was the phrase of Mr. Justice Hall in Calder at  34 page 390.  Or arises at common law as referred to by  35 Mr. Justice Mahoney at page 556, which is under the  36 next tab in the yellow binder, that page 556.  37 And then reference is made to a judgment of the  38 Judicial Committee in Vajesingji Joravarsingji v.  39 Secretary of State for India, a judgment of the --  40 which I will come back to again at a later point, but  41 that -- the extract from that judgment is found under  42 the next tab.  43 And I can tell your lordship that the background  44 of it was that in 1860 the domain of the Maharajah of  45 Gwalior was ceded to the Crown, namely the government,  46 in this case the Government of India, and three  47 landholders brought an action in the 1920s to 26591  Submissions by Mr. Goldie 1            determine whether the  rights they held were  2 proprietary interests, or as the Crown or the  3 Secretary of State for India contended, they were  4 merely tenants at will.  And at page 360 of the report  5 the judicial committee said this:  6  7 "Their Lordships will have occasion presently  8 to inquire into the circumstances of an earlier  9 date, but, for the moment, they pause at this  10 date, because what happened in 1860 determines  11 the law of the case.  This law was most clearly  12 laid down in the judgment of the board  13 delivered by Lord Atkinson in the case of  14 Secretary of State for India v. Bai Rajbai.  15 Their Lordships do not propose to repeat what  16 was there said.  It was no new law that Lord  17 Atkinson laid down.  The same had been held in  18 Secretary for State of India v. Kamachee Boye  19 Sahiba and Cook v. Sprigg.  But a summary of  20 the matter is this:"  21  22 And then there begins the quotation which is found  2 3 in my argument.  24  25 "When a territory is acquired by a sovereign  26 state for the first time that is an act of  27 state.  It matters not how the acquisition has  28 been brought about.  It may be by conquest, it  29 may be by cession following on treaty, it may  30 be by occupation of territory hitherto  31 unoccupied by a recognized ruler."  32  33 Just pausing there.  That's a settled colony.  34 Continuing:  35  36 "In all cases the result is the same.  Any  37 inhabitant of the territory can make good in  38 the municipal courts established by the new  39 sovereign only such rights as that sovereign  40 has, through his officers, recognized.  Such  41 rights as he had under the rule of predecessors  42 avail him nothing."  43  44 And a reference is made in the argument to the  45 Oyekan case.  46 THE COURT:  You'll come to it no doubt, but is that not in  47 conflict with Campbell and Hall? 26592  Submissions by Mr. Goldie        1  MR. GOLDIE:  No, my lord.  I  think it is consistent with it.  In  2 Campbell and Hall the court held that in the case of a  3 conquered colony the Royal prerogative enabled the  4 King to determine what the law is.  The issue there  5 was whether his promise to set up a legislature  6 precluded the exercise of the Royal prerogative, and  7 it did.  8 THE COURT:  So you say the distinction is as subtle as whether  9 the colony is ceded or conquered or a settled colony?  10 MR. GOLDIE:  Yes.  But for -- and it wasn't in the proclamation  11 of 1763.  In Campbell and Hall I think it was in a  12 proclamation about a year later, but for the assurance  13 made in that second proclamation that a legislature  14 would be set up in the colony the King's right to  15 continue to legislate would have prevailed.  And the  16 duties which were laid on the export of sugar would  17 have been valid.  But there is a very important  18 distinction that is most relevant to the case at bar,  19 which your lordship has perceived, and that is that  20 where you have a settled colony there is no room for  21 the Royal prerogative at all.  The law of England  22 follows the settlers.  And, of course, in the case of  23 British Columbia the law of England was introduced as  24 the second proclamation issued by Douglas in 1858.  25 The Vajesingji case is referred to by Mr. Justice  26 Blackburn in the Milurrupum case, and I'll be  27 referring to that again.  28 Turning back to my summary I say, the common law  29 aboriginal rights do not spring out of the air; they  30 are as much a product of, and dependent upon, legal  31 order under the Crown as any other right.  As the  32 Supreme Court of Canada stated in the May case:  33  34 "All exceptions, therefore, to the full and  35 complete power of a nation within its own  36 territory must be traced to the consent of the  37 nation itself given as a general rule by  38 treaty, convention or statute."  39  40  41 Now, this, of course, has reference to the fact  42 that in the case at bar the claims are being made  43 against the Crown, and they are claims which, in my  44 submission, in their totality consist of claims  45 asserting sovereignty as against the Province.  46 THE COURT:  The other question that springs immediately to mind  47 is whether what you're submitting is consistent with 26593  Submissions by Mr. Goldie        1 what the court said in  Guerin.  2 MR. GOLDIE:  There are two cases that I want to deal with in  3 that regard, Guerin and Roberts v. Canada.  4 THE COURT:  Yes.  All right.  In your own time.  5 MR. GOLDIE:  Yes.  And, of course, there is -- there is another  6 aspect of the case to which I've just referred to, and  7 that is whether it is consistent with the Simons case  8 in New Zealand.  Mr. Justice Blackburn comments on  9 that and comes to the conclusion that it may be that  10 Simons is inconsistent with the Judicial Committee's  11 pronouncement in this case I've just referred to.  12 Now, I say in paragraph 11, misconceiving the  13 process by which aboriginal rights comes into  14 existence leads to difficulties of analysis.  And the  15 example I gave is that of Mr. Justice Mahoney in the  16 Baker Lake case where he refers to the Royal Charter  17 of 1670, that is to say the Charter granting Rupert's  18 Land to the Hudson's Bay Company, under heading in his  19 reasons for judgment of "Extinguishment Before 1670".  20 I don't think I have that in there.  He considers  21 whether the Charter extinguished aboriginal title, and  22 finds that it did not.  But the Charter in itself is  23 an assertion of sovereignty over Rupert's Land.  24 Arguably, the making of the Charter marks the origin  25 of aboriginal rights that is flowing from the very  26 analysis that he made.  Viewed then correctly, the  27 Charter is thus part of the delimitation of the  28 aboriginal rights themselves.  The point is this:  The  29 terms on which sovereignty is asserted should not be  30 viewed as acts of extinguishment, but acts of  31 creation.  32 Aboriginal -- I'm in paragraph 12, my lord.  33 Aboriginal rights come into existence as a product of  34 the relationship between the Crown and the aboriginal  35 inhabitants of a territory over which the Crown is  36 sovereign.  This in part is, in my submission, is what  37 Lord Watson meant when in St. Catherine's Milling he  38 said, and I quote:  39  40 "The tenure of the Indians was dependent on the  41 goodwill of the sovereign."  42  43 My lord, those particular pages are found under  44 tab III/1-12.  And the particular language is found  45 towards the bottom of the page about ten lines from  46 the bottom.  47 "It was suggested in the course of the argument 26594  Submissions by Mr. Goldie 1                   for the  Dominion, that inasmuch as the  2 proclamation"  3  4 And that's the proclamation of 1763.  5  6 "recites that the territories thereby reserved  7 for Indians had never 'been ceded to or  8 purchased by' the Crown, the entire property of  9 the land remained with them.  That inference  10 is, however, at variance with the terms of the  11 instrument, which show that the tenure of the  12 Indians was a personal and usufructuary write,  13 dependent upon the goodwill of the Sovereign.  14 The lands reserved are expressly stated to be  15 'parts of Our dominions and territories;' and  16 it is declared to be the will and pleasure of  17 the sovereign that, 'for the present,' they  18 shall be reserved for the use of the Indians,  19 as their hunting grounds, under his protection  2 0 and dominion."  21  22 And then the tenure of the Indians, as he says,  23 was dependent on the goodwill of the sovereign.  And  24 your lordship will appreciate that tenure here means  25 the creation and nature of the interest as well as its  26 term.  That is to say at will.  Tenure is a word that  27 foreshadows a description of the nature as well as a  28 description of the time within which the interest is  29 held.  30 THE COURT:  Is it convenient to take the morning adjournment,  31 Mr. Goldie?  32 MR. GOLDIE:  Yes.  That's fine, my lord.  33 THE COURT:  Okay.  34 THE REGISTRAR:  Order in court.  Court stands adjourned for a  35 short recess.  36  37 (PROCEEDINGS ADJOURNED)  38  39 I hereby certify the foregoing to  40 be a true and accurate transcript  41 of the proceedings transcribed to  42 the best of my skill and ability.  43  44  45 Peri McHale, Official Reporter,  4 6 UNITED REPORTING SERVICE LTD.  47 26595  Submissions by Mr. Goldie        1        (PROCEEDINGS RESUMED  PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Goldie?  4 MR. GOLDIE:  Yes.  Thank you, my lord.  I was at page 5 of  5 Section 1 of Part III, my lord.  6 THE COURT:  Yes.  7 MR. GOLDIE:  And I say in paragraph 13 of my summary, it is  8 axiomatic that the source of a right which is  9 enforceable against the Crown must be found in an  10 acknowledgement of the existence of such a right,  11 whether express or from necessary implication.  12 Express acknowledgement may be found in an exercise of  13 the Royal Prerogative or in an Act of Parliament.  14 Necessary implication may arise from a course of  15 conduct by the executive on behalf of the Crown.  16 MR. JACKSON:  My lord, I'm just wondering if I might by way of  17 clarification ask Mr. Goldie if that proposition in  18 paragraph 13 is a different proposition from that  19 advanced by the court of appeal in Calder.  20 MR. GOLDIE:  Well, my friend can read the court of appeal in  21 Calder and he can read what I'm saying and he can form  22 his own conclusions, my lord.  23 THE COURT:  It does differ.  24 MR. GOLDIE:  Yes.  Now, when I say by necessary implication,  25 that doesn't have to coincide in time with the  26 founding of a colony, but it must be referable to the  27 colony.  28 Now, the question then is:  When the Crown  29 asserted sovereignty over a territory, what legal  30 rights, if any, were conferred upon the Indians as  31 against the Crown or its non-Indian subjects?  In  32 answering that question it is important to emphasize  33 that the content of the relationship between the Crown  34 and the aboriginal inhabitants of a particular  35 territory at a particular time is neither historically  36 nor (as a matter of constitutional principle) legally  37 predetermined.  To the extent that the Imperial  38 government delegated authority over the administration  39 of Indian affairs to local officials, uniformity of  40 policy or practice could hardly be expected.  41 Now, they -- Mr. Justice Blackburn in Milirrpum  42 noted that it is sometimes difficult to reconcile the  43 cases which came out of India with the cases that came  44 out of Africa.  And if anything can be said of New  45 Zealand, it is that it stands in a class by itself  46 because it started out as what appeared clearly to be  47 a ceded colony and yet at a later point was determined 26596  Submissions by Mr. Goldie        1 by law to be a settled  colony.  2 And I say that is why it is insufficient to  3 describe the Indians' historic occupation and  4 possession of their tribal lands as the sole factual  5 pre-condition for the creation of aboriginal title or  6 rights.  And that I take to be, my lord, and that is  7 intended to be an observation on the position taken by  8 the plaintiffs' case.  That is to say, that in their  9 submission, as we understand it, the factual issue of  10 historic occupation and possession is the sole  11 pre-condition that is required for the creation of  12 aboriginal title or rights.  In my submission, the  13 picture is incomplete without an understanding of the  14 relationship between the Crown and the aboriginal  15 inhabitants of the territory in question.  16 And I made reference earlier, my lord, to the case  17 of Warman and Thomas -- Warman and Francis, which is  18 under Tab III/1-7, where Mr. Justice Anglin is dealing  19 with -- with an issue arising in New Brunswick, a part  20 of Canada in which there was no treaties or cession or  21 surrender.  And on page 630 -- does your lordship have  22 that?  2 3  THE COURT:  Yes.  24 MR. GOLDIE:  At page 630 in the beginning of the second  25 paragraph:  26  27 "As to the defences on the main issue:  First,  28 as to what are called aboriginal rights.  The  29 nature of the interest in land once or now  30 vested in a tribe or band of Indians differs  31 throughout Canada, and each instance depends on  32 its historical background."  33  34 And he notes that -- towards the bottom of that page  35 he's quoting from Cameron's Annotation in 13 S.C.R.,  36 and I quote:  37  38 "In the treaties before Confederation cession  39 of the lands (by the Indians) was uniformly  40 made in general terms to His or Her Majesty.  41  42 (Footnote)  No surrender of aboriginal rights  43 has been made by the Indians in the Province of  44 Quebec or the Maritime Provinces."  45  46 And then Mr. Justice Anglin goes on to say:  47 26597  Submissions by Mr. Goldie        1 "So far as we  concerned with the Micmacs  2 this can only mean that there was no surrender  3 because there were no proprietary rights in our  4 law in the circumstances."  5  6 And then he goes on to make reference to the American  7 colonies, and I'll come to that.  8 Going back to paragraph 15 of my summary,  9 sovereignty over what is now Canada by the Crown in  10 right of the United Kingdom occurred at different  11 times in different places and in different ways.  The  12 history of relations between the aboriginal  13 inhabitants of Canada and the Crown differs across the  14 country.  There was no such thing as uniform Imperial  15 practice.  Since, at least prior to 1982, aboriginal  16 rights were unquestionably "dependent upon the good  17 will of the sovereign", it cannot, with respect, be  18 correct to say, as Professor Slattery does in his  19 article "Understanding Aboriginal Rights" that, and I  20 quote:  "The common law of aboriginal rights is  21 uniform across Canada", and I add to that, my lord,  22 unless he is to be understood as referring to  23 reserves.  24 THE COURT:  Surely reserves are not an incident of common law or  25 uniform of common law, are they?  26 MR. GOLDIE:  No.  But if one can say that there is a common law  27 that is uniform across Canada, it is confined to  28 reserves.  I don't mean the creation of reserves.  I  29 mean the law which governs the relations between the  30 members of the band in respect to whose interest the  31 reserve is held and the Crown in Right of Canada.  32 THE COURT:  All right.  33 MR. GOLDIE:  And indeed that's the — that's the substance of  34 remarks made by Madam Justice Wilson in the Roberts  35 Case, a reserves case, as was Guerin.  36 Now, I say that understanding aboriginal rights in  37 British Columbia requires understanding the process by  38 which sovereignty came to be asserted over what is now  39 the mainland of British Columbia and the evolving  40 relationship between the Crown and its Indian  41 subj ects.  42 When that process is examined in Part VII it will  43 be seen that there never was in the colony of British  44 Columbia any concept of aboriginal rights analogous to  45 the claim advanced here for ownership and  46 jurisdiction.  47 What was created and protected was an interest of 26598  Submissions by Mr. Goldie        1 the native peoples of  British Columbia in their  2 occupied village sites and, where they had adopted an  3 agrarian way of life as in the southern interior,  4 cultivated fields and as much land in the vicinity of  5 each as they could till, or was required for their  6 support, together with the right to free exercise and  7 enjoyment of fishing in the lakes and rivers and  8 hunting over all unoccupied Crown lands in the colony.  9 Now, that language is a paraphrase of the Governor  10 Douglas in 1860, and I will be dealing with that at  11 greater length.  12 Now, of course the right of the protection of the  13 interest in the village sites and fields was the  14 protection of an exclusive right, exclusive right of  15 occupation and possession.  The right of fishing and  16 hunting was in common with all others.  It was not an  17 exclusive right.  And in my submission the acts of the  18 colony -- and I should be more precise there.  The  19 acts of the governor, who was in his own person both  20 the executive and the -- and the legislature until  21 1863, translated a matter of political grace into a  22 matter of legal entitlement.  And, of course, we will  23 come to the -- to the ordinances which reflect that.  24 During the course of my friend's argument you were  25 referred to the Indian Reserve Ordinance of 1869,  26 which allowed stipendiary magistrates to settle  27 boundary disputes between people who owned land  28 contiguous to a reserve and the natives on the  29 reserve.  And that created a legal interest  30 enforceable by the stipendiary magistrates and the  31 people for whose benefit that reserve was set aside  32 and in whose name and the title of which was in the  33 Crown in Right of British Columbia.  34 From the outset -- I'm at paragraph 19 -- the  35 aboriginal interest had the essential characteristic  36 of non-alienability otherwise than to the Crown.  This  37 attribute was not predetermined, but rather was  38 created by the Crown when it declared its ownership of  39 all lands in the mainland colony by proclamation and  40 thereafter withdrew from settlement those portions  41 which comprised Indian villages and sites.  42 The plaintiffs have admitted that the interest  43 which they claim is alienable only to the Crown.  They  44 have admitted that their interest which they claim is  45 alienable only to the Crown.  That was in the lis  46 pendens appeal.  47 Now, the colony gave effect to its policy by, 26599  Submissions by Mr. Goldie        1 among other things,  setting aside reserves for the use  2 and benefit of the native peoples.  In addition the  3 Indians were afforded what Douglas described as "the  4 enjoyment of that natural freedom and liberty of  5 action without which existence becomes intolerable".  6 And that statement was made in the context of a -- of  7 policies being enforced elsewhere, and namely in the  8 adjacent American territories which had for their  9 object the segregation of native peoples.  10 I say that reserve allocation gave territorial  11 definition to the areas where the Crown had determined  12 to protect Indian occupation.  The policy of reserve  13 allocation became the central element of the process  14 by which the colonial legal order acknowledged and  15 gave effect to the fact of aboriginal presence.  16 Rights of hunting and fishing were -- nonexclusive  17 rights of hunting and fishing were extended subject to  18 the laws from time to time in force in relation to  19 those matters.  20 Now, upon confederation in 1871, the practice of  21 reserve allocation was made a continuing obligation of  22 the parties to the Terms of Union.  As part of the  23 division of legislative powers Canada assumed  24 constitutional responsibility for Indians and lands  25 reserved for Indians and Term 13 of the Terms of Union  26 defined British Columbia's responsibility upon this  27 transfer of legislative power.  The result was that an  28 aboriginal interest in village sites and lands  29 actually used and occupied by them continued to be  30 protected.  31 Now, the considerable significance of this  32 protection became apparent when it was held that as  33 constitutional guardian for the welfare of the  34 Indians, Canada could be made legally responsible for  35 its actions when reserve lands were dealt with other  36 than in accordance with the terms of surrender.  And  37 that's the Guerin Case.  38 The law in British Columbia long ago protected the  39 Indian interest in reserve lands set apart for their  40 use.  In 1985 Chief Justice Begbie enjoined entry of  41 contractors, purportedly authorized by the Dominion  42 Government, on to an Indian reserve to construct an  43 immigration shed.  44 My lord, that -- the extracts in relation to that  45 are under the Tab III/1-25.  And what is found there  46 is a typescript of the Bench Book which was entered  47 at -- as Exhibit 1057-36.  And I think all parties are 26600  Submissions by Mr. Goldie        1 agreed that the  typescript is a reasonable -- is a  2 reasonable attempt to reproduce Judge Begbie's rather  3 sketchy entries.  4 Now, in making his order -- and I note that he was  5 a Chancery-trained lawyer -- he applied the principles  6 applicable to a trustee and beneficiary and in this  7 respect anticipated Guerin by some 99 years.  He said,  8 from page 128 of his Bench Book, after noting that  9 control and management of Indian lands is vested by  10 statute in the Minister of the Crown, and I quote:  11  12 "Those words do not mean that the land and  13 property are delivered over to the arbitrary  14 will of any minister emancipated from all  15 provisions of statutes and doctrines of the  16 court which relate to proceedings between  17 trustees and cestuique trust."  18  19 Now, on the other hand when, a year later, a claim  20 of Indian title in a proprietary sense was raised, he  21 dismissed it in equally strong language.  And that's  22 at the next tab, my lord.  Again, this is a  23 typescript.  At page 448 of his Bench Book, he said:  24  25 "No proposition respecting land anywhere or in  26 any occupation could be more decisively or  27 clearly or consistently established than this,  28 that until a reserve had been duly established,  29 the Indians (not being enfranchised had no  30 rights to the land nor could acquire any rights  31 much less transfer any rights."  32  33 Now, the opening portion of his Bench Book is  34 found at Exhibit 1057 Tab 52.  I needn't refer to  35 that.  The application in question grew out of the  36 Metlakatla controversy, the first occasion on which,  37 so far as we have been able to ascertain, an Indian  38 right of a proprietary nature was asserted in a  39 British Columbia court.  40 My lord, I take it that it is clear that the  41 distinction we make between a proprietary claim and a  42 nonproprietary claim is the nonproprietary claim is  43 the usufruct, that is to say the personal right to use  44 something belonging to another.  The proprietary claim  45 is the claim to ownership, which was made by Mr.  46 Duncan in the Metlakatla controversy, and we take it  47 as what is being made here. 26601  Submissions by Mr. Goldie 1                Now, he said with  respect to such a claim that  2 the -- the chief justice made explicit reference to  3 what we contrast with that, the nonproprietary rights,  4 and I have set out the language which is found at  5 Exhibit 1040 Tab 98.  And he was -- he was addressing  6 counsel for the -- who really represented the -- the  7 point of view that was being put -- asserted on behalf  8 of Mr. Duncan and the natives who supported him.  He  9 said, and I quote:  10  11 "The very book, the very case from which you  12 cite the unsuccessful advocate's view contains  13 quite a long historical chain of authorities.  14 (I took the book from him and read at pages  15 206-209, 229-30 et cetera) showing the negation  16 of all Indian rights to the land, or to any  17 land, before reserves have been duly made and  18 that the only right recognized by our law (and  19 I believe the law of all civilized nations) is  20 merely a right of occupation, on the land at  21 the will of the Crown.  The decision equally  22 refused to recognize any individual Indian  23 right, or any transferrable tribal right, to  24 the land even when reserved (they certainly  25 have some definable, enforcible rights on such  26 reserves, as I held, even against in the  27 Emigrants' home case)."  28  29 Now, if I -- two comments, my lord.  The  30 Emigrant's home case is the one I referred to just a  31 minute ago in which Begbie enjoined the contractors  32 authorized by the Dominion from going on a reserve.  33 The second comment is noted in the footnote, and  34 that is our footnote, that he was referring to the  35 reported trial, that is to say Chancellor Boyd's  36 judgment of St. Catherine's Milling.  I think I might  37 demonstrate that by going to the report of Chancellor  38 Boyd and to the pages in question.  I'll get your  39 lordship a reference in the grey books to the  4 0 judgment.  It's the grey book, my lord, Volume 4 at  41 Tab S, as in sugar, 7, and page 206, which is the  42 first of the -- page 206 to 209, first of those  43 referred to by the chief justice.  The third paragraph  44 on that page begins with the words "The colonial  45 policy of Great Britain".  46 THE COURT:  Page 196?  47 MR. GOLDIE:  206, my lord. 26602  Submissions by Mr. Goldie        1  THE COURT:  This is the trial  :  This is the trial judgment.  This is the -- at the  time the chief justice decided the injunction  application before him in 1886.  This was the only  judgment outstanding in St. Catherine's Milling.  Does  your lordship have page 206?  Yes.  :  Beginning with the paragraph:  "The colonial policy of Great Britain as it  regards the claims and treatment of the  aboriginal populations in America has been from  the first uniform and well-defined.  Indian  peoples were found scattered wide-cast over the  continent, having, as a characteristic, no  fixed abodes, but moving as the exigencies of  living demanded."  I might just pause there and say with all respect to  Chancellor Boyd that is what I might call a central  Canadian view of things.  Continuing:  "As heathens and barbarians it was not thought  that they had any proprietary title to the  soil, nor any such claim thereto as to  interfere with the plantations, and the general  prosecution of colonization.  They were treated  'justly and graciously', as Lord Bacon advised,  but no legal ownership of the land was ever  attributed to them.  The Attorney-General in  his argument called my attention to a joint  opinion given by 'a multitude of counsellors',  about 1675, touching land in New York, while  yet a province under English rule."  And then footnote D indicates the -- the opinion,  which I don't recall my friend Mr. Jackson referring  to, but it is one that very definitely supports the  statement made by Chancellor Boyd.  And he says on  page 207:  "I think it accurately states the  constitutional law in these words:  'Though it hath been and still is the usual  practice of all proprietors to give their  Indians some recompense for their land, and so  judgment,  is it?  2  MR. GOLDIE  3  4  5  6  7  THE COURT:  8  MR. GOLDIE  9  10  11  12  13  14  15  16  17  18  19  20  1  21  1  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 26603  Submissions by Mr. Goldie 1                   seem to purchase  it of them, yet that is not  2 done for want of sufficient title from the King  3 or Prince who hath the right of Discovery, but  4 out of prudence and Christian charity least  5 otherwise the Indians might have destroyed the  6 first planters (who are usually too few to  7 defend themselves) or refuse all Commerce and  8 Conversation with the planters, and thereby all  9 hopes of converting them to the Christian faith  10 would be lost.  In this the common law of  11 England and the civil law doth agree.'  12  13 Though some planters have purchased from the  14 Indians yet having done so without the consent  15 of the proprietors for the time being, the  16 title is good against the Indians but not  17 against the proprietors without a confirmation  18 from them upon the usual terms of other  19 plantations."  20  21 Now, whatever one may think of that statement, it is a  22 statement by a respectable authority of what the law  23 was and it was obviously one that Chancellor Boyd  24 relied upon and it was one adopted by Chief Justice  25 Begbie.  26 And then at page 209 he goes on to refer to  27 Johnson and Mcintosh and quotes from that case what  28 supports his conclusion.  And then after doing so, in  29 the second-to-last paragraph he says:  30  31 "This right of occupancy attached to the  32 Indians in their tribal character.  They were  33 incapacitated from transferring it to any  34 stranger, though it was susceptible of being  35 extinguished.  The exclusive power to procure  36 its extinguishment rules was vested in the  37 Crown, a power which as a rule was exercised  38 only on just and equitable terms.  If this  39 title was sought to be acquired by others than  40 the Crown, the attempted transfer passed  41 nothing and could operate only as an  42 extinguishment of the Indian right for the  43 benefit of the title paramount."  44  45 Now, that -- that was one section that the chief  46 justice referred to.  The other section's at 229-30  47 and I -- I think the part that he is referring to as 26604  Submissions by Mr. Goldie        1 relevant to the  judgment he gave is found at the  2 bottom of page 229.  When I say he, I'm, of course,  3 referring to Chief Justice Begbie.  And at this part  4 of his judgment, Chancellor Boyd was referring to the  5 change in relations between the government and the  6 Indians upon the establishment of reserves.  And he  7 said again -- this is at the last paragraph, and I  8 quote:  9  10 "Again:  The relations between the government  11 and the Indians change upon the establishment  12 of reserves.  While in the nomadic state they  13 may or may not choose to treat with the Crown  14 for the extinction of their primitive right of  15 occupancy.  If they refuse the government is  16 not hampered, but has perfect liberty to  17 proceed with the settlement and development of  18 the country, and so, sooner or later, to  19 displace them.  If, however, they elect to  20 treat they then become, in a special sense,  21 wards of the State, are surrounded by its  22 protection while under pupillage, and have  23 their rights assured in perpetuity to the usual  24 land reserve."  25  26 And then down a few sentences or lines:  27  28 "Before the appropriation of reserves the  29 Indians have no claim except upon the bounty  30 and benevolence of the Crown.  After the  31 appropriation, they become invested with a  32 legally recognized tenure of defined lands; in  33 which they have a present right as to the  34 exclusive and absolute usufruct, and a  35 potential right of becoming individual owners  36 in fee after enfranchisement."  37  38 Your lordship will see the relevance of that to the  39 statements made by the chief justice.  40 Turning back to paragraph 28 of my summary, I say  41 these statements by Begbie in 1885 and 1886 have the  42 character of both reasons for judgment and of the  43 colloquy which takes place between judge and counsel.  44 Their importance is not confined to an exact legal  45 perception of two distinctly different kinds of claim.  46 They are also statements by one whose experience with  47 the Indian peoples of British Columbia was exceeded 26605  Submissions by Mr. Goldie        1 only by that of Sir  James Douglas himself.  2 I say it is here emphasized that the "... right  3 recognized by our law"... referred to by the Chief  4 Justice is a right enforceable against third parties.  5 It is not one enforceable against the Crown and could  6 not be when it exists "... at the will of the  7 Crown..."  8 Now, such was the view of Sir John A. Macdonald in  9 the exhibit referred to in paragraph 29 and in the  10 relevant portion of the -- of the -- of the yellow  11 binder.  He -- Sir John A. was responding to a letter  12 from the Reverend Alexander Sutherland.  And the  13 letter is dated the 28th of February, 1887.  And he  14 says:  15  16 "Dear Doctor Sutherland,  17 I have your private note of the 25th instant  18 respecting the Indian reserves in British  19 Columbia, for which I am much obliged.  The  20 position of the Indians in that province is in  21 a very unsatisfactory state."  22  23 Your lordship will bear in mind that this is very  24 close to the time when the -- the Metlakatla  25 controversy was coming to a head.  The -- continuing:  26  27 "The British Government, when B.C. was a Crown  28 colony, treated the Indians with liberality,  29 but did so merely as a matter of grace.  The  30 Indian title to the soil had never been  31 admitted there, and before and since the union  32 with Canada Reserves were laid out by the  33 Government there for various tribes or bands of  34 Indians according to the government's  35 discretion."  36  37 Now, I'm not citing that as an example of  38 accuracy.  What I am saying is that the -- it was  39 perceived at that time that the -- that the -- the  40 actions of the Crown -- the Imperial Crown during the  41 colonial period was a matter of grace.  We don't -- we  42 will be submitting to your lordship that whether it is  43 correct to state that the actions of Douglas were a  44 matter of grace is -- is a precise or accurate  45 description is beside the point.  We will be  46 submitting that in doing what he did, he went beyond  47 any requirement, whether of law or policy of the day. 26606  Submissions by Mr. Goldie        1 Then I say as will  be seen below, such too appears  2 to have been the view of Chief Justice Marshall in  3 Johnson and Mcintosh.  And I analyse that at some  4 length.  But I say only here that the relevant passage  5 was quoted by Chancellor Boyd in his judgment in St.  6 Catherine's Milling.  7 And then I note that it was also the view of the  8 Secretary of State for the colonies, Earl Grey, in  9 1846, when he instructed the then newly-appointed  10 Governor of New Zealand on the subject of the  11 aborigines of that colony.  And the extract is set out  12 under Tab 30.  And the part that I am quoting from is  13 on page 67.  These are instructions from the Secretary  14 of State for the colonies to the Governor of New  15 Zealand in 1846.  And I -- I think it's introduced by  16 the -- the -- about midway down the page, Earl Grey  17 says -- in the paragraph beginning with the words  18 "Believing that the instructions, as thus prepared",  19 he says in the second sentence:  20  21 "I turn to other topics on which it seems  22 indispensable that on the present occasion I  23 should convey to you explanations for which, of  24 course, no appropriate place could be found in  25 the legal instruments already mentioned.  I  26 avdvert especially to what relates to the  27 aborigines of New Zealand, and the settlement  28 of the public lands in those islands.  29 I cannot approach this topic without  30 remarking that the protracted correspondence to  31 which it has given rise, the public debates and  32 resolutions which have sprung from it, and the  33 enactments and measures of your predecessors in  34 the Government, have all contributed to throw  35 into almost inextricable confusion the  36 respective rights and claims of various classes  37 and individuals amongst the inhabitants of New  38 Zealand, to render very embarrassing the  39 inquiry in which you must doubtless be engaged  40 respecting the line of conduct which Her  41 Majesty's Government expect you to pursue, and  42 at the same time to make it almost impossible  43 for us to determine, with any confidence, what  44 that conduct ought to be, and how far, in a  45 state of affairs so complicated, it is possible  46 now to act upon the principles to which, in the  47 absence of these difficulties, I should have 26607  adherence  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Goldie        1 prescribed your  I will not attempt  any retrospect of those documents and  proceedings.  I should but be adding to the  perplexity which I acknowledge and regret.  It  shall be my attempt rather to explain, as  briefly as the nature of the subject admits,  what is the policy which, if we were  unembarrassed by past transactions, it would be  right to follow, and which (so far as any  freedom of choice remains to us) ought still to  be adopted, regarding the right of property in  land which should be acknowledged or created,  more especially as affecting the aborigines of  New Zealand."  Now, that's his introduction to what he's going to  say, and I needn't enlarge upon it.  It is clear  that -- that -- this is continuing the -- a  description of the situation that New Zealand found  itself in as a result of the confusion over the manner  in which that colony was brought into being and the  actions which were taken by the New Zealand company  before there was a colony.  Now, turning to what he would have had done in  which he asks the new governor to do as much as he  can, he says, and I quote:  "I enter on this topic by observing that the  accompanying statute, repeals the Australian  Land Sales Act, as far as relates to lands  situate in New Zealand.  Thus there is a  complete absence of any statutory regulations  on this subject.  The Queen, as entitled in  right of her Crown to any waste lands in the  colony, is free to make whatever rules Her  Majesty may see fit on the subject.  The  accompanying Charter accordingly authorizes the  Governor to alienate such lands.  The  accompanying instructions direct how that power  is to be used.  I proceed to explain the  motives by which those instructions have been  dictated.  The opinion assumed, rather than advocated,  by a large class of writers on this and kindred  subjects is that the aboriginal inhabitants of  any country are the proprietors of every part  of its soil of which they have been accustomed 26608  Submissions by Mr. Goldie        1 to make any use,  or to which they have been  2 accustomed to assert any title.  This claim is  3 represented as sacred, however ignorant such  4 natives may be of the arts or of the habits of  5 civilized life, however small the number of  6 their tribes, however unsettled their abodes,  7 and however imperfect or occasional the uses  8 they make of the land.  Whether they are  9 nomadic tribes depasturing cattle, or hunters  10 living by the chase, or fishermen frequenting  11 the sea-coasts or the banks of rivers, the  12 proprietary title in question is alike ascribed  13 to them all.  14 From this doctrine, whether it be  15 maintained on the grounds of religion or of  16 morality or of expediency, I entirely dissent.  17 What I hold to be the true principle with  18 regard to property in land is that which I find  19 laid down in the following passage from the  20 works of Dr. Arnold, which I think may safely  21 be accepted as of authority upon this subject,  22 not only on account of his high character, but  23 also because it was written not with reference  24 to passing events, or to any controversy which  25 was at that time going on, but as stating a  26 principle which he conceived to be of general  27 application."  28  2 9 And then he quotes from Dr. Arnold.  And I'm not going  30 to read that, except to say that what it comes down to  31 is that the aboriginal right is a claim limited to the  32 possession of lands actually occupied, that is to say  33 inhabited.  34 THE COURT:  Dr. Arnold's some philosopher, was he?  35 MR. GOLDIE:  I think he was a legal commentator like -- he may  36 even have been, for all I know, the headmaster of  37 rugby.  There was a famous Dr. Arnold who has achieved  38 some prominence in that regard.  But whoever he was,  39 the Secretary of State is adopting his views and is  40 instructing the Governor of New Zealand accordingly.  41 And those instructions are consistent with the -- with  42 the observations and conclusions reached by Chancellor  43 Boyd.  44 THE COURT:  I sense that the quotation on the bottom of page 13  45 of your argument is not a complete quote.  I think  46 there's a couple of sentences --  47 MR. GOLDIE:  No, it isn't, my lord.  It doesn't — doesn't 26609  Submissions by Mr. Goldie        1 provide the  introductory part which I read at some  2 length.  3 THE COURT:  But even what's here isn't complete, I don't think.  4 MR. GOLDIE:  Oh, you mean under Tab —  5 THE COURT:  Yes.  6 MR. GOLDIE:  No.  It's much longer.  The exhibit itself is much  7 longer.  8 THE COURT:  Yes, but even the passage -- you mentioned a Charter  9 and I don't see that.  I just followed it very  10 quickly.  It just struck me that it wasn't complete.  11 MR. GOLDIE:  Well, I'll check that, my lord.  It was intended to  12 be a reproduction of the paragraph beginning at the  13 bottom of page 67 of the exhibit, part of which is  14 found under Tab 30 and which is sidelined in the  15 yellow one.  16 THE COURT:  All right.  17 MR. GOLDIE:  And the — it ends with the words "I entirely  18 dissent", which is the first sentence of the second  19 paragraph on page 68.  2 0 And I say that what his views were and the  21 instructions he gave, because this was a letter  22 accompanying the instructions, will be examined later.  23 My lord, the aboriginal interest described above,  24 with its essential characteristis of non-alienability  25 and the fiduciary obligation arising upon surrender to  26 the Crown, is not the interest claimed by the  27 plaintiffs.  The characteristics of the rights claimed  28 and the availability of such rights as a matter of  29 law, now we propose to examine.  30 And that brings me to Section 2, ownership and  31 jurisdiction.  32 The rights claimed by the plaintiffs are described  33 in the Statement of Claim as rights of ownership and  34 jurisdiction.  The proposition that such rights are  35 not simply "aboriginal title otherwise so-called"  36 starts with the analysis of the pleadings in Part II  37 Section 2 above, from which it has been seen that the  38 Statement of Claim distinguishes between ownership and  39 jurisdiction on the one hand, and aboriginal title on  40 the other.  41 As Mr. Plant said to your lordship this morning,  42 we intend to as part of our conclusion try to bring  43 the statements of counsel made in the course of the  44 trial together with the -- and in argument together  45 with the pleadings into one -- one analysis so that we  46 are able to say, as I believe we can say with  47 confidence, that the claim that is made here does not 26610  Submissions by Mr. Goldie        1 include the Calder type  nonproprietary claim.  2 Now, I make reference to the opening and in the  3 last five lines of what is quoted, I have  4 emphasized -- or I do emphasize now these words:  5  6 "We are not interested in asserting aboriginal  7 rights - we are here to discuss territory and  8 authority."  9  10 Now, my lord, page 2 I provide some statements or  11 definitions of the word 'ownership' and Jowitt's  12 Dictionary of English Law defines ownership as:  13  14 "... the most extensive right allowed by law to  15 a person, of dealing with a thing to the  16 exclusion of all other persons, or of all  17 except one or more specified persons.  It is  18 therefore a right in rem. "  19  2 0 And then about midway down that paragraph, my lord,  21 beginning with the words "So long, however":  22  23 "So long, however, as the grantees"...  24  25 That is to say the grantees of the purported owner.  26  27 "... have only definite rights of user over the  28 thing, and the original owner retains an  29 indefinite right, he is still owner."  30  31 In my submission the plaintiffs in this case have put  32 forward a claim under which they wish to be the owner,  33 and the only right of user in the Crown is the right  34 of pre-emption, which the province no longer  35 possesses.  36 And then the -- and then he goes on:  37  38 "But if he parts with the indefinite right and  39 retains only a definite one, (for example a  40 right of way in the case of land) he ceases to  41 be owner.  42  43 Ownership is said to be absolute when it is  44 subject only to those restrictions which are  45 imposed by law on all owners, and are therefore  46 implied in the idea of ownership."  47 26611  Submissions by Mr. Goldie        1 And we say at this  point, my lord, that the only  2 restrictions which the plaintiffs appear to be  3 prepared to acknowledge are those imposed by their own  4 law save in respect of areas that are Crown granted  5 before October, 1984.  6 And the -- these extracts are all in the -- in the  7 yellow binder.  The reference to Halsbury is under Tab  8 III/2-5, page 4.  And the learned authors state there,  9 and I quote:  10  11 "Ownership consists of innumerable rights over  12 property, for example the rights of exclusive  13 enjoyment, of destruction, alteration and  14 alienation, and of maintaining and recovering  15 possession of property from all other persons.  16 Those rights are conceived not as separately  17 existing, but as merged in one general right of  18 ownership."  19  20 Now, ownership as we take it to be advanced here  21 implies property in the thing possessed.  It implies  22 the right to make decisions with respect to use, the  23 right to exclude others from use and the right of  24 alienation or disposal.  And when I come to examine  25 the attributes of the plaintiffs' claim as made by my  26 friend Mr. Jackson, it will be seen that at the heart  27 of it is exclusive possession.  28 Continuing with my summary at page 4, ownership  29 implies identification of the thing owned with  30 sufficient certainty to permit the exercise of the  31 described rights and their enforcement as against  32 others.  But the exercise of rights of ownership is  33 usually a private act; thus, when we speak of  34 ownership rights, we are speaking of what are  35 conventionally described as private rights.  36 Then I go on to refer to jurisdiction and with  37 the -- the conventional definitions are set out there  38 and they're in the relevant pages of the yellow  39 binder.  40 And paragraph 10 I note that the plaintiffs'  41 conception of jurisdiction clearly goes beyond that  42 jurisdiction which is necessarily incidental to  43 ownership of property.  44 And I say in paragraph 11, to summarize, the  45 plaintiffs' claim -- that should be s apostrophe --  46 fuses private law rights of ownership and public law  47 rights of governments.  Neither, allegedly, is subject 26612  Submissions by Mr. Goldie        1 to the general law.  In  substance, if not in form, the  2 claim amounts to an assertion of sovereignty.  3 While they purport to recognize the underlying  4 title of the Crown, that title is said to be burdened  5 by and subject to their rights.  And I won't -- I  6 won't repeat the -- our submissions with respect to  7 the extensive nature of the rights claimed and what  8 they are in reality as opposed to what they may be  9 qualified and by statements of counsel here.  And Mr.  10 Plant has discussed a number of the matters which are  11 touched upon here.  12 I note on page 7 that the -- that our political  13 and legal system accords tremendous liberty to its  14 citizens and I make the appropriate references there.  15 Now, in paragraph 18 I say that all subjects of  16 the realm, and at least up until now (the plaintiffs  17 are included in that category) have considerable  18 freedom to organize their lives as they please and  19 within such structures as they choose.  These  20 structures may be newly-created, or may be part of a  21 religious or ethnic heritage.  And there are many  22 examples of that:  Families, churches, political  23 parties, trade unions, clubs, professional  24 associations.  The members of privately constituted  25 organizations have such rights, amongst themselves, as  26 they are prepared to confer upon one another.  The  27 Lakeside Colony Case, my lord, is a decision of the  2 8 Manitoba Queens Bench and it's found in Volume 2 Tab  29 L-l.  That -- the judgment in that case recognized the  30 right -- recognized -- it's L-l, my lord.  31 THE COURT:  Yes.  Thank you.  32 MR. GOLDIE:  Recognized the right of the Hutterian Brethren  33 Church, which under whose constitution all property of  34 its members were held in common to expel a member for  35 repeated refusals to adhere to the principles of the  36 church's constitution.  And the issue that arose was  37 to whom did the property in which the plaintiff lived  38 and which he had improved belonged?  And the Court  39 held -- and I should note the judgment is under  40 appeal, or at least a leave application was sought or  41 will be heard in May of this year, this month.  But  42 the judgment recognized the communal right and said  43 that unless the procedure which the community followed  44 in expelling the member and in stripping him of his  45 rights was a denial of natural justice, that his  46 membership in the community carried with it an  47 acceptance of the consequences of his defiance of the 26613  Submissions by Mr. Goldie        1 community's laws and  customs.  2 THE COURT:  This is a trial judgment?  3 MR. GOLDIE:  This is a trial judgment.  4 THE COURT:  When you said leave will be sought —  5 MR. GOLDIE:  The footnote on page 473 —  6 THE COURT:  All right.  7 MR. GOLDIE:  — is leave to appeal to the Manitoba Court of  8 Appeal was filed in December of 1989.  I would have  9 thought that leave would have been granted as a right.  10 THE COURT:  I wouldn't have thought it would have been required.  11 MR. GOLDIE:  Yes.  I shouldn't say leave was granted as of  12 right.  I would have thought that he would have had an  13 appeal as of right, but -- but the point is that the  14 Court was prepared to give effect to a consensual  15 arrangement after satisfying itself that there was  16 nothing unfair in the procedure.  But the arrangement  17 was -- was binding upon the plaintiff only because it  18 it was at -- in its origin consensual and one that he  19 had participated in.  20 Now, my lord, applying some of these observations  21 to the case at bar, it may be suggested that when  22 non-Indians first came to British Columbia, the  23 plaintiffs' ancestors governed themselves in some part  24 or parts of what is now the claim area.  And today,  25 within the sphere of relations circumscribed by the  26 feast system, clearly some of the plaintiffs still  27 conduct their affairs in a manner different from what  28 might be called the mainstream Canadian society.  That  2 9 much is obvious from the evidence.  But to admit this  30 does not constitute the plaintiffs' feast hall as a  31 sovereign authority which is superior to and immune  32 from the legal institutions of the Canadian  33 Constitution and Federal system of government.  34 Now, my lord, I want to at this point deal with  35 with the characteristics of the ownership as discussed  36 by my friend Mr. Jackson at transcript 327, page 24932  37 to page 24987.  And I propose handing up an addendum  38 which --  39 THE COURT:  That's upwards of 40 pages.  40 MR. GOLDIE:  Beg your pardon?  41 THE COURT:  Upwards of 40 pages, 24932 to 24987.  42 MR. GOLDIE:  That's what the discussion is.  43 THE COURT:  All right.  44 MR. GOLDIE:  But my -- my comments are much shorter.  4 5 THE COURT:  Thank you.  46 MR. GOLDIE:  And perhaps they might be inserted in the book  47 at -- to follow paragraph 19, which I have just read. 26614  Submissions by Mr. Goldie        1  THE COURT:  Yes.  All right.  2 MR. GOLDIE:  The characteristics of the claim that is made were  3 set out by my friend Mr. Jackson in his written  4 argument and there are two pages which are attached to  5 this addendum.  They're pages at the top headed page  6 10 and 11.  7 THE COURT:  Yes.  8 MR. GOLDIE:  And there my friend Mr. Jackson put it this way:  9 He said the Court raised the question at volume 325,  10 pages 247912 whether the plaintiffs' claim to  11 ownership is something different from aboriginal  12 rights or whether it is another way of describing  13 aboriginal rights.  The Court also asked whether the  14 plaintiffs are saying they have proprietary interests  15 equivalent to fee simple.  The plaintiffs' response  16 can be summarized in this way.  And then Mr. Jackson  17 has set out eight propositions, which I'm going to  18 refer to briefly.  And the first one is that the  19 ownership of the territories is split.  The Crown in  20 right of the province has the underlying title.  The  21 plaintiffs have an aboriginal title.  Both the Crown  22 and the aboriginal titles are co-existing forms of  23 ownership.  24 The second proposition is the plaintiffs'  25 aboriginal title is a sui generis common law.  And I  26 ask your lordship to note those words, common law,  27 proprietary interest distinct from an estate in fee  28 simple.  The plaintiffs do not claim an estate in fee  2 9 simple.  30 I'm just going back to the beginning of my  31 addendum.  I say taken as a whole, these propositions  32 confirm the concept of ownership derived from the  33 pleadings.  Such a concept reduces the Crown in right  34 of the province to a virtual nonentity as it is even  35 denied the exclusive right of pre-emption:  Such a  36 right, the plaintiffs say, may be exercised only by  37 Canada with the plaintiffs' consent.  38 The central feature of the plaintiffs' concept is  39 exclusive possession.  Number four on the list, and  40 that's on page 11, reads, and I quote:  41  42 "The plaintiffs' interest extends to the full  43 and exclusive enjoyment of the territory and  44 all its resources."  45  46 Number 3 states:  47 26615  Submissions by Mr. Goldie 1                   "The plaintiffs'  interest is based on their  2 possession pre-existing the assertion of Crown  3 sovereignty."  4  5 And number 6 is:  6  7 "The plaintiffs' interest, so analyzed, has the  8 essential hallmarks of ownership and not merely  9 use and occupancy."  10  11 Now, I take it that the words "and not merely use and  12 occupancy" is a reference to the Calder type of  13 declaration.  14 Now, turning back to my addendum, paragraph 19B,  15 although the ownership is claimed to be sui generis,  16 it is said in proposition number 2 to be a "... common  17 law proprietary interest distinct from a fee  18 simple...".  Now, if any sense can be made of this --  19 and I don't mean to be disrespectful, my lord, but I'm  20 trying to -- I am trying to reconcile what I say are  21 contradictory propositions, namely common law  22 proprietary interests distinct from a fee simple.  I  23 say if any sense can be made of this, the interest of  24 the plaintiffs must be one which the common law  25 recognizes as proprietary, that is to say an interest  26 in real property which is an interest other than a fee  27 simple.  28 Now, there is no estate known to the common law  29 which is based on possession prior to the assertion of  30 sovereignty, and I should say no estate in land, that  31 is to say proprietary estate.  All interests in land  32 in British Columbia must derive either mediately or  33 immediately from the Crown.  In other words, every  34 interest in land has to start with a Crown grant,  35 which is the terms upon which the Crown recognizes the  36 ownership of a private person.  Reference will be made  37 to this again, but in substance the point is this:  38 When the civil and criminal laws of England, as the  39 same existed at the date of the proclamation of  40 November 19th, 1858, and so far as they were not, from  41 local circumstances, inapplicable to the colony of  42 British Columbia, became in full force and effect in  43 the colony, the principle that the basic title to all  44 land was vested in the Sovereign was the law in  45 British Columbia.  The effect of the proclamation was  46 to extinguish, by denying recognition to, any claim  47 (if such existed), including aboriginal title, but 26616  Submissions by Mr. Goldie        1 extending to all  others, which did not derive from a  2 grant by the Sovereign.  3 Now, if I may interject at this point, we will see  4 when we come to analyse the historical development  5 that Douglas was at pains to deny both miners' law --  6 which had an understood meaning amongst the California  7 miners, to deny both the existence of miners' law and  8 Indian law in British Columbia one and the same time.  9 Now, this was not, so far as I can make out, a  10 point argued in Calder and in itself, in my  11 submission, it is fatal to an interest described in  12 propositions 1, 2 and 3.  13 Now, I want to interject one other reference here,  14 and that is to Milirrpum, which where Mr. Justice  15 Blackburn looked at much the same sort of proposition.  16 That's Volume 2 of the grey books, my lord, Tab M-2.  17 THE COURT:  Which volume?  18 MR. GOLDIE:  Volume 2 Tab M-2.  19 THE COURT:  Yes.  Quite a short one as I recall.  20 MR. GOLDIE:  Yes.  He touches virtually every base.  Well, about  21 100 pages into his judgment he examines the  22 consequence of -- that follows from a colony being a  23 settled colony.  And this bears directly upon the  24 effect of the introduction of English law.  And at  25 page 244 —  26 THE COURT:  Yes.  Sorry.  Yes?  27 MR. GOLDIE:  It's the way the pages are photographed.  It's on  28 the left-hand side.  It's about the fourth paragraph  29 beginning with the words "What follows from this  30 rule".  31 THE COURT:  Yes.  32 MR. GOLDIE:  And this rule was the categorization of colonies.  33 What he says is this:  34  35 "What follows from this rule, as I have already  36 shown, is that in principle from the moment of  37 the foundation of a settled colony English law,  38 so far as it was applicable, applied in the  39 whole of the colony.  English law, as applied  40 in England, certainly did not, for obvious  41 reasons, include a rule that communal native  42 title had to be respected.  The question  43 whether English law, as applied to a settled  44 colony, included, or now includes, a rule that  45 communal native people where proved to exist  46 must be recognized, is one which can be  47 answered only by an examination of what has 26617  Submissions by Mr. Goldie        1 happened in the  laws of the various places  2 where English law has been applied."  3  4 And then he goes on in the next page, the top of the  5 page, the paragraph beginning:  6  7 "There is, however, much additional authority  8 from which, in my opinion, the same conclusion  9 must be drawn."  10  11 The same conclusion is that the doctrine of communal  12 native title does not exist in English -- in English  13 law.  He says:  14  15 "There is, however, much additional authority  16 from which, in my opinion, the same conclusion  17 must be drawn.  This includes all the  18 Australian cases to which I was referred on  19 this aspect of the case.  None of them either  20 expressly or impliedly refers to any doctrine  21 of communal native title; the issues in all of  22 them arose between non-aboriginal subjects, or  23 between such subjects and the Crown.  They all  24 affirm the principle, fundamental to the  25 English law of real property, that the Crown is  26 the source of title to all land; that no  27 subject can own land allodially, but only an  28 estate or interest in it which he holds  29 mediately or immediately of the Crown."  30  31 And I have expanded my reference there, my lord,  32 because I want to emphasize that the claim that is  33 made by the plaintiffs in this case is a proprietary  34 interest, which means an estate in real property.  35 Now, continuing.  36 THE COURT:  I think we'll adjourn, Mr. Goldie.  37 MR. GOLDIE:  Yes.  Thank you, my lord.  38 THE COURT:  Just a moment, please.  39 MR. GOLDIE:  That would be at the end of the first paragraph on  40 page 19 — page 9(3).  41 THE COURT:  Yes.  All right.  Two o'clock, please.  42 THE REGISTRAR:  Order in court.  Court stands adjourned until  43 two o'clock.  44  4 5 (PROCEEDINGS ADJOURNED)  46  47 26618  1  2  3  4  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings transcribed to the best  9 of my skill and ability.  10  11  12    13 Kathie Tanaka, Official Reporter  14 UNITED REPORTING SERVICE LTD.  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 26619  1 h2 Submissions by Mr. Goldie  2 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  3  4 THE REGISTRAR:  Order in court.  5 THE COURT:  Mr. Goldie.  6 MR. GOLDIE:  My lord, before I continue, I'm assured that the  7 quotation from the despatch of the Secretary of State  8 for Colonial Affairs to the new Governor of New  9 Zealand which is found at page 13 of part 3, Section  10 1, that that quotation is a correct transcription of  11 what purports to be --  12 THE COURT:  Well, I just didn't hear you right then.  As I  13 followed, it didn't seem to me that I could find all  14 the words that I heard you say.  15 MR. GOLDIE:  That would not surprise me, my lord.  Sometimes  16 the —  17 THE COURT:  Where is it, on page 13?  18 MR. GOLDIE:  Page 13 is paragraph 30.  19 THE COURT:  Of Roman I?  20 MR. GOLDIE:  Roman III, Arabic 1, page 13.  21 THE COURT:  All right.  22 MR. GOLDIE:  What the eye sees and what the tongue repeats is  23 sometimes two different things.  24 THE COURT:  Well, I will take your word for it.  Thank you.  25 MR. GOLDIE:  I suppose the correct -- the correct conclusion to  26 draw from it is that your lordship shouldn't do  27 anything other than go to the original exhibit.  28 THE COURT:  I thought you were going to say that I shouldn't  29 listen to what you are saying.  30 MR. GOLDIE:  Well, I might even go as far as that, my lord, if I  31 could be assured that you are going to read all the  32 exhibits.  33 THE COURT:  All right.  Where are you now, Mr. Goldie?  34 MR. GOLDIE:  I am at the addendum to paragraph 19 of Roman III,  35 Arabic 2.  3 6 THE COURT:  Yes.  37 MR. GOLDIE:  And I was on page 9(3) of that addendum.  3 8 THE COURT:  Yes.  39 MR. GOLDIE:  And, my lord, I had mentioned that the proposition  40 that flows from the introduction of English law into a  41 settled colony was one that was well known in the  42 constitutional law of England.  But it was made -- it  43 was put beyond doubt in the case of the mainland  44 colony with the second Proclamation of Douglas which,  45 as I said earlier, was drafted in England and sent out  46 to him and which he proclaimed on November 19th, I  47 think it was, 1858. 26620  1  2 Now, the proposition that that in itself was fatal  3 to an interest of the kind put forward here was not,  4 of course, argued in Calder.  I assume because the  5 interest was not of the kind that we are faced with  6 here.  But I say that it is fatal to the proposition  7 set out in items 1, 2 and 3 of the Plaintiffs'  8 argument that the ownership of the territories is  9 split; that the Plaintiffs' aboriginal title is a sui  10 generis common law proprietary interest; and that  11 their interest is based on their possession  12 pre-existing the assertion of Crown sovereignty.  I  13 say that that can't stand in the face of the  14 introduction of English law which is based on the  15 bedrock principle that all interests in land stem from  16 the Crown either mediately or immediately.  17  18 Now, going on with paragraph 19C.  My friend, Mr.  19 Jackson, after referring to proposition number 6 which  20 is that "the Plaintiffs' interest, so analyzed, has  21 the essential hallmarks of ownership and not merely  22 use and occcupancy" went on to suggest by reference to  23 the evidence of Dr. Daly how that ownership is  24 translated into present day terms.  And that  25 discussion begins at page 24988 of transcript 327.  26 And there is a preceding discussion about the  27 usefulness of that.  And your lordship said that you  28 need not trouble Mr. Jackson to read what the  29 Encyclopedia Britannic said about the matter.  But at  30 the top of Dr. Daly's list is, and I'm now reading  31 from that transcript, my lord, line 24.  This is my  32 friend Mr. Jackson.  And I quote.  33  34 "Dr. Daly suggested the following common  35 elements of a system of ownership:"  36  37 And then he quotes from Dr. Daly's evidence which was  38 objected to.  But Mr. Willms' objection was noted.  39  40 "A broad explanation of ownership in any  41 culture would include the following aspects.  42 First, ownership implies the concept of  43 exclusive possession."  44  45 Now, when we look at the proposition number 3,  46 namely that "the Plaintiffs' interest is based on  47 their possession pre-existing the assertion of Crown 26621  1 sovereignty."  And we seek to reconcile that with  2 exclusive possession.  Exclusive possession prior to  3 the assertion of sovereignty would obviously be an  4 assertion as against other aboriginal peoples.  But  5 the order that is sought here translates exclusive  6 possession from as against other aboriginal peoples to  7 the Crown.  8  9 And I say that whatever may have been the fact of  10 possession at the time sovereignty was asserted with  11 respect to other aboriginal peoples, the evidence in  12 this case negates in every sense exclusive possession  13 as a matter of fact as against the Crown on October  14 25, 1984 of any lands except reserves.  Evidence, in  15 my submission, which might be appropriate in deciding  16 competing land claims as between the subjects of the  17 Crown is irrelevant as against the Crown.  The  18 Plaintiffs' case, as put forward, depends on placing  19 the Crown on the same basis as the surrounding, and  20 sometimes adverse claims of native peoples.  I am  21 referring there, of course, to the so-called  22 Overlands.  23  24 Proposition number 5 which reads as follows:  25  26 "The precise legal character of the Plaintiffs'  27 interest is determined by an analysis of the  28 laws and usages of the Plaintiffs in the  29 context of their organized society."  30  31 Now, in my submission, that is a shorthand way of  32 saying that assertions of possession intelligible only  33 to an inner circle of what amounts to a club  34 constitutes assertions against the Crown.  My lord,  35 the references that are in that paragraph are, of  36 course, not in the yellow binder.  But my use of the  37 word "club" comes from my friend Mr. Grant's  38 cross-examination of Mr. Hobenshield.  And you'll find  39 that in the extract that I have referred to.  But the  40 other references are I think best illustrated by what  41 I set out from transcript 327 at page 25007, lines 10  42 to 19 where Mr. Grant describes how Mr. Mathews'  43 possession of his territory "came together" with his  44 presence on the territory.  And this is what my friend  45 Mr. Grant put it in argument:  46  47 "... they have possession  ... through the 26622  1 knowledge of place names, and their going on  2 the territory with respect to those place  3 names, and through the confirmation of the  4 territory in the feast."  5  6 Now, I say that apart from the difficulty this  7 creates for chiefs like Mary McKenzie who have never  8 been on the territory they claim, it is bordering, I  9 submit, on fantasy and unsupported by any authority  10 say that the common law of England or British Columbia  11 ever recognized such internal gestures as constituting  12 indicia of exclusive possession of any kind, much less  13 that against the Crown.  14  15 And I refer again to the Milurrupum case which is  16 the tab M-2, I believe it is, in volume 2 of the grey  17 books.  And the reference is to page 217.  And your  18 lordship may recall that Mr. Justice Blackburn goes  19 through in rather painstaking detail the case law from  20 a number of jurisdictions including the United States.  21 And he concludes at page 217:  22  23 "I am well aware of my inexperience in American  24 law, yet I cannot help concluding that despite  25 the force and eloquence of the dicta in them,  26 none of these cases is authority for the  27 proposition that the mere fact of communal  28 occcupancy gives a title enforceable in the  29 sovereign's courts against the sovereign or one  30 claiming under him. "  31  32 Now that, of course, is the heart of the  33 Plaintiffs' case in this case.  And I say the later  34 Oneida case is not inconsistent with this.  35  36 Continuing, even assuming that adverse possession  37 could be asserted against the Crow, the Plaintiffs'  38 claim of exclusive possession based upon recitals at  39 feast, etc., works in my submission against them.  40 Whatever illusions the native inhabitants may have had  41 at the time about the role of fur traders or even Mr.  42 Downie in 1859 they could not reasonably believe that  43 "exclusive possession" could be maintained by such  44 devices against the miners travelling to and from the  45 Omineca or working at Lome Creek; or against Dewdney  46 and Hankin at Hazelton or more importantly, as against  47 the work crews of the Overland Telegraph. 26623  1  2 I mean by that, my lord, that the fur traders were  3 people with whom the native peoples were trading.  4 They might reasonably conclude that Downie was simply  5 a traveller.  I don't think there could be any  6 illusions as to what the miners were doing, or as what  7 Dewdney and Hankin were doing.  But when we come to  8 the work crews of the Overland Telegraph who were  9 forbidden to trade with the native peoples who were  10 cutting a trail through the countryside, a right of  11 way, and cutting down trees and doing all other things  12 that are totally inconsistent with the ownership of  13 other people in that land, there couldn't be any  14 illusions on their part as to the meaning of the acts  15 that these people were undertaking.  16  17 Nor did they ever say, until now, that these  18 customs constituted possession against the Crown.  And  19 this is without consideration of the dramatic  20 instances, bordering on confrontation with  21 representatives of the Crown, when the ancestors of  22 the present Plaintiffs elected to avoid conflict.  23 And, of course, I'm referring there to the instances  24 which a number of witnesses have referred to, the  25 Kitsegukla fire, the Kitwancool Jim matter and so on.  26 And I say as a matter of logic, the sharper the  27 confrontation the less the effective, for example, the  28 recitals at feasts at which there were no  29 representatives of the Crown.  In other cases the  30 ancestors sought non-native assistance to resolve  31 conflict between and among themselves.  And I say that  32 that is in and of itself a contradiction of any  33 indicia of exclusive possession.  34 THE COURT:  What do you mean by that?  35 MR. GOLDIE:  Well, for instance, trapline disputes.  They  36 enlisted the assistance to settle as between -- as  37 amongst themselves the example of Thomas George and  38 Mathew Sam.  39 THE COURT:  Well, do you say that a failure to object to the  40 Collins Overland Telegraph, which may have thought not  41 to interfere greatly with their exclusive possession,  42 must be deemed to disprove exclusive possession?  43 MR. GOLDIE:  It is not so much a question of failure to object.  44 It is simply indicative of the lack of efficacy of  45 their own methods of demonstrating amongst themselves  46 possession.  Whatever the efficacy of the recitation  47 of adaawks at feasts may have with respect to other 26624  1 aboriginal peoples, these what I call internal  2 gestures could not have any effect on complete  3 strangers who are not invited to the feasts.  And when  4 those strangers were doing what the people who built  5 the telegraph were doing, nobody amongst the  6 Plaintiffs' ancestors at that time could reasonably  7 believe that they were maintaining exclusive  8 possession.  9 THE COURT:  Well, I thought the recitation of possession or  10 ownership at the feasts were put forward as evidence  11 of their knowledge and as proof of their history or  12 the duration of their ownership rather than as  13 gestures against the Crown.  14 MR. GOLDIE:  Well, I am taking the propositions that my friend  15 Mr. Jackson was good enough to set out in point form.  16 And I trust I have demonstrated that exclusive  17 possession is at the heart of all of them.  And from  18 there I passed on to the proposition that:  19  20 "The precise legal character of the Plaintiffs'  21 interest,"  22  23 and I interject here, whatever that interest is it is  24 based upon exclusive possession,  25  26 " determined by an analysis of the laws  27 and usages of the Plaintiffs in the context of  28 their organized society."  29  30 Now, I took that to mean that exclusive possession  31 against the Crown is to be taken -- is to be  32 determined by what the plaintiffs did at the time.  33 MR. JACKSON:  My lord, perhaps that is not a fair  34 characterization by what was intended by proposition  35 number 5.  Proposition number 5 was a reference to the  36 Amodu Tijani case and was intended to be the  37 referential incorporation of the court looking at the  38 particular laws of the Plaintiffs in order to  39 characterize the nature of the interest without  40 necessarily reducing it to the incidents which would  41 be appropriate to a rendition of ownership at common  42 law.  My friend is referentially incorporating  43 gestures which certainly was not the meaning of that  44 proposition.  45 MR. GOLDIE:  Well, I took what my friend has just said to apply  46 to number 5 which is a sui generis common law  47 proprietary interest.  I was talking about item number 26625  1 6.1 am now going back to paragraph 20 of my main  2 summary, my lord.  3 THE COURT:  Yes.  4 MR. GOLDIE:  And I say whatever the situation was in British  5 Columbia at the time of the assertion of sovereignty  6 it is different today.  In the Sparrow case, and I  7 think the excerpt that I refer to is in fact found in  8 the yellow binder.  Yes, it is, my lord.  9 THE COURT:  Yes, III/2-20?  10 MR. GOLDIE:  Yes.  The Court responded to a submission that  11 section 35(1) of the Constitution Act precludes  12 government regulation of the Indian salmon fishery, by  13 saying at page 272:  14  15 "The constitutional recognition of the right to  16 fish cannot entail restoring the relationship  17 between Indians and salmon as it existed 150  18 years ago.  The world has changed.  The right  19 must now exist in the context of a  20 parliamentary system of government and a  21 federal division of powers.  It cannot be  22 defined as if the Musqueam Band had continued  23 to be a self-governing entity, or as if its  24 members were not citizens of Canada and  25 residents of British Columbia.  Any definition  26 of the existing right must take into account  27 that it exists in the context of an industrial  28 society with all of its competing complexities  29 and competing interests -- with all of its  30 complexities and competing interests."  31  32 Now, of course that case is under appeal.  And the  33 judgment is pending.  Nevertheless, in my submission  34 it simply states a common-sense proposition.  Common  35 sense and constitutionally common sense.  36  37 I go on to say in a different context, but to  38 similar effect, is the following observation of Lord  39 Sumner on behalf of the Privy Council in Re Southern  40 Rhodesia.  That's in the next tab, my lord.  Now, it  41 may be recalled that in that judgment or in that case  42 the native peoples were unable to retain counsel to  43 speak on their own behalf.  Although the principal  44 issue was between the local legislature and the  45 Southern Rhodesia Company.  And at page 234 the Court  46 or the Committee examines the submission of the native  47 peoples in that case that they had a proprietary 26626  1 interest.  And that Lobengula who was the chieftain  2 who had died was merely a trustee.  And about midway  3 down the page, or about a third of the way down the  4 page beginning with the words "Lobengula's duties", it  5 reads:  6  7 "Lobengula's duties, if describable as those of  8 a trustee, were duties of imperfect obligation.  9 Except by fear or force he could not be made  10 amenable.  He was the father of his people, but  11 his people may have had no more definite rights  12 than if they had been the natural offspring of  13 their chieftain.  According to the argument..."  14  15 and this is the argument put forward on behalf of the  16 native peoples,  17  18 "...the natives before 1893 were owners of the  19 whole of these vast regions in such a sense  20 that, without their permission or that of their  21 King and trustee, no traveller, still less a  22 settler, could as much as enter without  23 committing a trespass.  If so, the maintenance  24 of their rights was fatally inconsistent with  25 white settlement of the country, and yet white  26 settlement was the object of the whole forward  27 movement, pioneered by the Company and  28 controlled by the Crown, and that object was  29 successfully accomplished, with the result that  30 the aboriginal system gave place to another  31 prescribed by the Order in Council."  32  33 THE COURT:  Well, that's a might is right argument, isn't it?  34 MR. GOLDIE:  But that was in response, though, my lord, that the  35 natives were the total -- were the owners of the  36 country in total.  It was not a might is right  37 argument except in response to the proposition that  38 there was a proprietary right that encompassed the  39 whole of the country.  40 THE COURT:  In response to whether might.  41 MR. GOLDIE:  Exactly.  And when I come to what was done here, it  42 will be seen that the response of British Columbia was  43 responsive to what was considered to be the  44 appropriate interest of the natives at the time.  It  45 was not a might is right argument or policy that was  46 adopted in British Columbia.  47 26627  1 But what the judicial committee is saying is that  2 there is an inconsistency between that degree of  3 ownership, which is what my friends are asserting, and  4 settlement.  The two are inconsistent.  And your  5 lordship will see when we come to it that the policy  6 of the Imperial Government with respect to the Colony  7 of British Columbia was settlement.  Douglas was  8 constantly being urged to make things agreeable to the  9 settlers.  And a good deal of his efforts were devoted  10 to encouraging settlement.  Not for the purpose of  11 defeating any native claims because they weren't made  12 in any such terms as was made here until this case.  13 But for the purpose of ensuring that the country would  14 not be taken over by alien elements, that is to say  15 the miners.  16  17 Now, the plenary rights of governance which are  18 claimed by the Plaintiffs in this action are  19 unsupported by authority.  Such rights would be  20 inconsistent with the sovereignty of the Crown which  21 is acknowledged, purportedly acknowledged, in  22 paragraph 72A of the Statement of Claim.  23  24 Now, the Madzimbamuto case is referred to under  25 tab III/2-22.  And that case arose as a result of the  26 unilateral Declaration of Independence on the part of  27 Southern Rhodesia.  And the issue was:  What effect  28 did that have?  And the answer was:  In law, nothing.  29 At the top of page 722, the Privy Council said this:  30  31 "If The Queen in the Parliament of the United  32 Kingdom was Sovereign in Southern Rhodesia in  33 1965, there can be no doubt that the Southern  34 Rhodesia Act 1965, and the Order in Council  35 made under it were of full legal effect there.  36 Several of the learned judges have held that  37 Sovereignty was divided between the United  38 Kingdom and Southern Rhodesia.  Their Lordships  39 cannot agree.  So far as they are aware it has  40 never been doubted that, when a colony is  41 acquired or annexed, following on conquest or  42 settlement, the Sovereignty of the United  43 Kingdom Parliament extends to that colony, and  44 its powers over that colony are the same as its  45 powers in the United Kingdom."  46  47 I say that that is a fatal proposition.  Or I should 26628  1 say that statement is fatal to the proposition that  2 there was a divided sovereignty in the colony in 1858.  3 The Sobhuza case is not in the yellow binder, but it  4 is in the grey books, tab S-6.  I think it is volume  5 2.  And the page numbers for the Sobhuza case in the  6 citation would be pages 525 and 528.  Perhaps I ought  7 to look at that.  8 THE COURT:  In the grey binder?  9 MR. GOLDIE:  It is in the grey binder, my lord, it is tab S-6.  10  11 The particular circumstance under which this case  12 arose was that Swaziland before the Boer War was an  13 independent native state so far as great Britain was  14 concerned.  And it was treated as a protected  15 dependency of the republic, the South African  16 Republic, before the conflict with the Boers and the  17 British.  The question that arose was whether the  18 nature of the change which took place both in respect  19 of the Boer colonies which became conquered colonies  20 and Swaziland itself which eventually became  21 incorporated, what the legal significance was of those  22 changes.  23  24 At page 525 beginning in the first paragraph:  25  26 "In the Southern Rhodesia case Lord Sumner, in  27 an elaborate judgment given on behalf of the  28 Judicial Committee on a special reference,  29 expressed views which are substantially  30 similar.  He held that a manifestation by  31 Orders in Council of the intention of the Crown  32 to exercise full dominion over lands which are  33 unallotted is sufficient for the establishment  34 of complete power."  35  36 Now, if I may pause there to note the word unallotted.  37 Those were lands which were held not to be occupied by  38 the nomadic native peoples.  39  40 "Both of these cases imply that what is done  41 may be unchallengeable on the footing that the  42 Order in Council, or the proclamation made  43 under it, is an act of State.  This method of  44 peacefully extending British dominion may well  45 be as little generally understood as it is,  46 where it can operate, in law unquestionable."  47 26629  1 And then he goes -- Viscount Haldane goes on to say:  2  3 "Such being the principle, it remains to  4 ascertain whether it has been put in operation  5 in the case under consideration.  To answer  6 this question it is first necessary to recall  7 the true character of the native title to land  8 throughout the Empire, including South and West  9 Africa.  With local variations, the principle  10 is an uniform one.  It was stated by this Board  11 in the Nigerian case of Amodu Tijani v.  12 Secretary, and is explained in the report made  13 by Rayner Chief Justice on Land Tenure in West  14 Africa, quoted in the case referred to.  The  15 notion of individualownership is foreign to  16 native ideas.  Lands belongs to the community  17 and not to the individual.  The title of the  18 native community generally takes the form of a  19 usufructuary right, a mere qualification of a  20 burden on the radical or final title of whoever  21 is sovereing.  Obviously such a usufructuary  22 right, however difficult to get rid of by  23 ordinary methods of conveyancing, may be  24 extinguished by the action of a paramount power  25 which assumes possession or the entire control  26 of the land."  27  28 And the action of the paramount power in this case  29 was Orders in Council.  And that is made here, I  30 believe, at page 528, the second paragraph.  31  32 "The principles of constitutional law laid down  33 in the earlier part of their Lordships'  34 judgment rendered in their opinion impossible  35 to maintain the argument submitted for the  36 appellant.  That argument is that the Crown has  37 no powers over Swaziland, except those which it  38 had under the conventions and those which it  39 acquired by the conquest of the South African  40 Republic.  The limitation in the Convention of  41 1894 on interference with the rights and laws  42 and customs of the natives cannot legally  43 interfere with a subsequent exercise of the  44 sovereign powers of the Crown, or invalidate  45 subsequent Orders in Council.  But if this be  46 true it makes an end of the appellant's case."  47 26630  1 It goes on to construe the effect of the Order in  2 Council -- the Orders in Council.  3  4 Now, I say, my lord, that it is in the name of the  5 reigning monarch that this Court is seized of the  6 matters that come before it and what purports to  7 displace that relationship is unenforceable in this  8 Court.  And I refer to Coe v. Commonwealth, which is  9 in the -- an excerpt of this is under tab III/2-23.  10 And in the grey books in tab C-6.  My lord, in that  11 case which was in the High Court of Australia, four  12 judges sat on a direct appeal from what we would call  13 a judge in chambers who, by agreement, was dealing  14 with an Amended Statement of Claim as if the motion  15 before him was to strike it out.  While the four  16 judges sitting in the High Court split two to two on  17 whether the whole of the revised Statement of Claim  18 should be struck out.  Two of them being for striking  19 them out in its entirety, and two being for striking  20 it out in part only.  They were at one in the part to  21 which I am going to refer.  22  23 Now, the reference on page 132, which is the  24 excerpt in the tab in the yellow binder, is to the  25 Judgment of Mr. Justice Jacobs who was one of the  26 dissenting judges.  And if your lordship would turn to  27 page 132.  I think I should ask your lordship to look  28 at the grey book which is volume 2, tab C-6.  And the  29 reason I do that is that Mr. Justice Jacobs makes  30 reference to paragraphs in the Statement of Claim.  31 And to see the text of those paragraphs, one will have  32 to look at the judgment of Mr. Justice Gibbs starting  33 at page 121.  34  35 Now, however, I will go through that item by item.  36 The paragraph in question on page 132 is the last on  37 the page.  And it begins with these words:  38  39 "The proposed amended statement of claim seeks  40 to raise a number of issues which can be  41 regarded separately.  The first part is  42 apparently intended to dispute the validity of  43 the British Crown's and now the Commonwealth of  44 Australia's claim to sovereignty over the  45 continent of Australia in the face of a  46 sovereignty alleged to be possessed by the  47 aboriginal nation.  Paragraphs 2A and 3A are in 26631  1 much the same form as the original statement of  2 claim but the word "wrongfully" has been added,  3 thus disputing the validity of the Crown's  4 proclamations of sovereignty and sovereign  5 possession."  6  7 Now, if your lordship would now turn to page 121.  8 At the top of the page in the second paragraph is  9 amended paragraph 2A.  And the next is amended  10 paragraph 3A.  And the amended put in the word  11 "wrongfully" in the second line of each of the two  12 paragraphs.  And transformed it from an allegation of  13 fact which was not -- could not be objected to, to one  14 which disputed the validity of the possession in  15 sovereignty.  16  17 Now, if I could go back to page 132 where Mr.  18 Jacobs speaks to the effectiveness.  19  20 "These are not matters of municipal law but of  21 the law of nations that are not cognizable in a  22 court exercising jurisdiction under that  23 sovereignty which is sought to be challenged.  24 As such, they are embarrassing and cannot be  25 allowed.  I would therefore strike out of the  2 6 proposed amendments the word "wrongfully" where  27 it appears in paras 2A and 3A.  I would also  28 strike out (or, strictly, refuse to allow) para  29 3B."  30  31 And if one goes back to 121, one sees what 3B is.  And  32 that alleges:  33  34 "The claims of Captain Cook, Captain Phillip  35 and others on behalf of King George III and his  36 heirs and successors were contrary to the  37 rights, privileges, interests, claims and  38 entitlements of the aboriginal people both  39 individually and in tribes and of the  40 aboriginal community and nation as more fully  41 set out in para 8A hereof."  42  43 So he would have struck out, and in this he was at one  44 with the rest of the court, the whole of paragraph 3B.  45 And he says:  46  47 "Paragraph 3C suffers from the same defect." 26632  1  2 And I am now back at the top of page 133.  And he  3 continues, and I quote:  4  5 "...and, so far as it states the coming into  6 existence of the Commonwealth of Australia, it  7 is unnecessary, and the same is true of para  8 3D.  Paragraph 8A appears also to be directed  9 to the question whether under the law of  10 nations Australia was terra nullius in 1770 and  11 1778.  Further, it seeks to impugn the  12 proclamations taking possession of New South  13 Whales on behalf of the British Crown.  This is  14 not permissible in a municipal court.  15 Paragraphs 13A and 14A suffer in the same way.  16 Paragraphs 15A, 16A and 16B are also directed  17 to a claim of international sovereignty and  18 cannot be allowed.  The same is true of paras  19 11A and 12A in their context.  Thus what I have  20 called the first branch of the proposed  21 statement of claim cannot be allowed because  22 generally it is formulated as a claim based on  23 a sovereignty adverse to the Crown."  24  25 My lord, I am aware, of course, at a relatively late  26 time in the day that the Plaintiffs purported to  27 acknowledge the sovereignty of the Crown in right of  28 the province.  My submission in this part is that when  29 one takes the proposition stated by my friend Mr.  30 Jackson, and those are just shorthand for what the  31 principal argument was, one finds that they are  32 asserting interests alleged to be common law interests  33 co-existing with that of the Crown, and which are  34 based upon exclusive possession as against the Crown.  35  36 Now, again I reiterate, and I will be doing so on  37 other occasions, that the question of whether British  38 Columbia was a settled colony or a conqueted or ceded  39 colony was settled by the Act of 1858 and is not open  40 to question here.  Not that the plaintiffs could  41 contest it.  They say that they were never conquered,  42 nor did they cede their lands.  The matters,  43 therefore, to be on the footing that this is a settled  44 colony.  45 THE COURT:  What are you reading from there?  46 MR. GOLDIE:  That is an interjection, my lord.  I should have  47 signalled that. 26633  1 THE COURT:  All right.  2 MR. GOLDIE:  Now, my lord, that brings me to page 11.  And I  3 have wanted, in much the same way as I have done with  4 the claim to ownership, to deal with the question of  5 jurisdiction as we understand it.  And I have a  6 section to hand up.  7 THE COURT:  Well, is it accurate to summarize what you are  8 saying up to this point then, Mr. Goldie, that if  9 the -- if the law of England was incorporated into the  10 mainland colony on November 19, 1858 at that point  11 there was not thereafter any possibility of aboriginal  12 ownership of a proprietary sense?  13 MR. GOLDIE:  In a proprietary sense and outside the village  14 sites.  15 THE COURT:  Yes.  All right.  But you say the same thing about a  16 non-proprietary interest?  17 MR. GOLDIE:  Yes, I do, my lord.  Because so far as we can  18 determine, what the New Zealand Select Committee  19 referred to as colonial law recognized an interest  20 confined to settlements, or as what the lands actually  21 occupied and reduced to agricultural use.  22 THE COURT:  Well, then the whole case turns on whether the claim  23 to possessory aboriginal title in a proprietary sense  24 outside village sites or a mere usufructuary right  25 outside the proprietary sense depends whether those  26 rights pre-existed the establishment of the colony or  27 not.  28 MR. GOLDIE:  Well, I think with respect to the question of  29 pre-existing is a red herring.  What I have sought to  30 extract from the authorities is the proposition that  31 the -- and as a matter of logic, is a proposition that  32 before the Crown asserts sovereignty, it has no  33 interest in what exists, and conversely those who are  34 there have no interests in what exists elsewhere.  35 There has to be some -- either something specific such  36 as an act of parliament or an executive act or a royal  37 proclamation or something to be implied from a course  38 of conduct which allows the courts to say:  This is  39 where an interest is recognized.  40  41 In fact, the judicial committee judgment in the  42 Vajesingji case that I referred to this morning says  43 that unless there is an Act of State there is no  44 pre-existing -- there is no recognition of anything  45 pre-existing.  I don't go that far.  I say that there  46 can be a recognition through a course of conduct.  It  47 so happens in British Columbia, as I will seek to take 26634  1 your lordship through the various steps, that there  2 was an Act of State on the part of the Governor.  3 There were actually two.  One was the proclamation of  4 the November 19, 1858.  And the other was the  5 declaration of the Governor setting aside reserves.  6 Those declarations were, in themselves, both the  7 creation of the interest and the protection of the  8 interest.  9 THE COURT:  And also the denial of any other interest?  10 MR. GOLDIE:  Yes.  11 THE COURT:  In your argument?  12 MR. GOLDIE:  In my submission.  13 THE COURT:  Well, then what you are saying, if I understand you,  14 is that pre-existing or not is a red herring because  15 there is no context in which to deal with it.  It  16 can't exist until there is a context?  17 MR. GOLDIE:  Exactly, my lord.  18 THE COURT:  Such as if a tree falls in the forest, there is no  19 sound unless there is an ear to hear it.  20 MR. GOLDIE:  That's correct.  If British Columbia — well, let  21 me take an extreme but not impossible hypothesis.  If  22 Douglas had not succeeded in controlling the influx of  23 miners and keeping the miners and the native peoples  24 apart, and there had been the kind of conflicts which  25 Bancroft in his history suggest almost came about, the  26 chances are that the American forces would have  27 followed their nationals across the border and that  2 8 would have been that.  29  30 Now, as to rights against the British Crown, the  31 whole business would have been academic.  Well, worse  32 than academic.  It would have been nothing.  So the  33 context in which the interest of the native peoples  34 comes to be created and protected is the context of  35 the colony which is a settled colony created by an act  36 of parliament in which full legislative and executive  37 powers are delegated through the Crown to the  38 Governor.  Now, the fleshing out of that proposition  39 depends very much upon following the facts, the  40 historical facts through.  41 THE COURT:  Well, I have to say that I am troubled by your  42 submission because of a fuzzy recollection I have of  43 what Chief Justice Dickson said in Guerin.  44 MR. GOLDIE:  Oh, I will come to both that and a similar  45 statement in Robert's v. Canada by Madam Justice  46 Wilson.  And I don't want to embark upon that at this  47 point.  But I do emphasize the proposition that in 26635  1 both cases they were talking about reserve lands.  2 THE COURT:  But he said it didn't make any difference.  3 MR. GOLDIE:  In British Columbia it doesn't make any difference  4 because the extent of the reserve lands was the extent  5 that the law recognized required protection.  Village  6 sites, settlements and adjoining agricultural lands.  7 Now, a different proposition arises in other parts of  8 Canada where a surrender was taken and reserves were  9 then created.  And the reserves might have been any  10 place, without particular regard to existing village  11 sites.  But if your lordship will look back on what  12 the Select Committee said was undoubted colonial law,  13 that is, in my submission, the extent of the law that  14 was recognized in 1858.  And in my submission, we will  15 find that Douglas went beyond that.  16 THE COURT:  All right.  17 MR. GOLDIE:  My lord, this insert is headed Part III, Section 5,  18 A Response to the Plaintiffs' Arguments, A  19 Jurisdiction, Self-Government and Sovereignty.  And it  20 could conveniently be put in following Part 4 or  21 Section 4, although I do want to deal with it at this  22 point.  23 THE COURT:  All right.  So it will precede — no, it will follow  24 Part 4, will it?  25 MR. GOLDIE:  Yes, it will follow 4.  26 THE COURT:  It will be at the end of Roman III?  27 MR. GOLDIE:  Yes.  It is my submission that the claims to  28 ownership and jurisdiction not only as pleaded but as  29 we now understand them, and I have to say that our  30 understanding may be imperfect, has no substance in  31 the law administered in this court.  And I now wish as  32 I have dealt with ownership to say something about  33 jurisdiction.  And that is the part that I have just  34 handed up.  And I start off by making reference, my  35 lord, to the summary which -- the written summary  36 which my friends provided us with.  37  38 And I say that in the written summary at page 639  39 in Volume 2, Part 3, the Plaintiffs submitted as  40 follows:  41  42 "The Plaintiffs' asserted rights are not, as  43 the defendants have sought to characterize  44 them, rights to sovereignty.  The jurisdiction  45 which the Plaintiffs assert is one exercised  46 within the framework of Canadian Confederation  47 as part of Canadian law.  The Plaintiffs' 26636  1 jurisdiction is sui generis and based upon the  2 evidence before this court, can be analyzed  3 under the following heads."  4  5 And then follow some 11 items beginning with:  To  6 harvest, manage and conserve the resources of the  7 territory; and going through the transfer of  8 territory, the granting of access; determination of  9 citizenship; to regulate family relations; supervise  10 internal affairs; conduct feasts; resolve disputes;  11 enter into and conduct international relations and  12 settle disputes with other nations; make and enforce  13 laws in relation to the above.  And I take it that is  14 the above being items 1 to 8.  To protect and affirm  15 the ownership of the territory and the authority of  16 the house; and to jointly maintain the Gitksan  17 institution and laws and the Wet'suwet'en institution  18 and laws.  19 THE COURT:  Go ahead, Mr. Goldie.  20 MR. GOLDIE:  In their final argument, under the heading "The  21 Plaintiffs' Right to Jurisdiction", and I believe that  22 is introduced in transcript 328 page 25119.  I  23 shouldn't say "introduced".  I should say they are  24 identified.  And identified somewhat differently at  25 pages 4 to 5 of their final argument.  And I am not  26 sure what the section is, but it is final argument.  2 7 And I quote:  28  29 "The areas of jurisdiction exercised by the  30 Gitksan and Wet'suwet'en Houses include  31 jurisdiction."  32  33 And then it goes through some nine items.  And items 2  34 and 10 from the first list appear to be dropped.  That  35 is:  36  37 "To transfer the territory and to grant rights  38 of access in accordance with Gitksan and  39 Wet'suwet'en laws."  40  41 And the 10th item is:  42  43 "To protect and affirm the ownership of the  44 territory and the authority of the House."  45  46 And in item 9 which is:  47 26637  1 "To make and enforce laws in relation to the  2 above,"  3  4 the word "enforce" has been changed to "implement".  5 Now, it is my submission that the changing terminology  6 and the changing content of the Plaintiffs' claimed  7 jurisdiction highlight the ambiguity of the  8 Plaintiffs' position.  Significantly, neither list  9 purports to be complete, which leads naturally to the  10 question:  what else is there?  And maybe the answer  11 to that is found in our study of the statement made by  12 the Chiefs yesterday.  13  14 Now, my lord, under paragraph 4.  15  16 MR. GRANT:  Excuse me.  With respect to this point which I have  17 just received this supplement, I just want your  18 lordship to note that in the course of final argument  19 if there is a comparison of the content as opposed to  20 the listing, for the purposes of argument, items 2 and  21 10 were encompassed in item E.  And it was in terms of  22 presentation of argument, my lord, a decision of  23 counsel as to how to present the argument.  So items 2  24 and 10 from the first list, the content were dealt  25 with under the supervision of the internal affairs of  26 the house.  27 MR. GOLDIE:  Be that as it may, my submission remains.  And I  28 wish to go on to look at it in a somewhat more general  29 terms.  I say that sovereignty is the condition of  30 autonomy free of external control.  And I say the  31 debate here over terms is not a matter of wordplay.  32 It is part of the continuing struggle to give some  33 focus to the generally-expressed claims of the  34 Plaintiffs.  If the Plaintiffs' jurisdiction, and I  35 quote "is one exercised within the framework of  36 Canadian Confederation as parts of Canadian law", then  37 the position is clear:  the Plaintiffs are subject to  38 all federal laws and also to all provincial laws of  39 general application.  And I say that is the present  40 constitutional situation.  I say that absent specific  41 legislation to the contrary, and I give the example of  42 the Provincial Act, the Sechelt Indian Band  43 Self-Government Act, and the Federal Act, the  44 Cree-Naskapi Act, the laws of Canada and British  45 Columbia do not recognize an inherent power in the  46 Gitksan or the Wet'suwet'en, or any other group, "to  47 make and enforce laws" -- now, my friend tells me that 26638  1 the change of the word "enforce" to "implement" is of  2 no significance, so I will stick with enforce -- in  3 relation to any matter which from sheer force of  4 enactment become binding upon and enforceable against  5 third parties, including the Crown.  6  7 My lord, I appreciate that there is some changing  8 focus here, too.  Just as the ownership of Crown  9 grants prior to October 1984 is said to be excluded  10 from the Plaintiffs' claim of ownership, so it appears  11 now that the claim of jurisdiction over persons may be  12 affected by ownership of the land.  I took it from  13 what my friends have said that the owners of the fee  14 granted before October 1984 are not subject to  15 jurisdiction.  But I understood that the owners of  16 permits or licences would be subject to the  17 jurisdiction of the Plaintiffs.  Whatever the powers  18 that the Plaintiffs seek in respect of jurisdiction  19 are rights which are related to sovereignty.  20  21 And at page 5 I point out that the Plaintiffs'  22 Prayer for Relief continues to include as the 8th  23 declaration sought the following:  24  25 "A declaration that the Defendant Province's  26 jurisdiction over the Territory, the Plaintiffs  27 and members of the Houses represented by the  28 Plaintiffs is subject to the Plaintiffs' right  29 to ownership and jurisdiction."  30  31 Now, to describe this "jurisdiction" as "sui generis",  32 or equally to suggest that the Province's jurisdiction  33 can be determined on a case-by-case basis as a result  34 of a general declaration is, in my submission, an  35 unhelpful distraction.  The phrase "sui generis" used  36 in cases such as Guerin simply means that the  37 character of aboriginal interests ought not to be  38 exclusively expressed in English property law terms.  39 It does not mean that aboriginal interests are  40 undefinable.  At some point they must be defined.  41  42 For the same reason, the repeated reference to  43 Amodu Tijani as justifying the reluctance to define  44 the Plaintiffs' alleged rights in terms familiar to  45 Canadian law is equally unhelpful.  Sooner or later  46 the question must be asked and answered:  What exactly  47 is it that the Plaintiffs claim?  Now, the Amodu case 26639  1 which is referred to a number of times by my friends  2 is found in the Plaintiffs' Volume 1 at tab 14, and  3 was a case of a ceded colony.  Now, that's the first  4 point of distinction.  Furthermore, it was a case for  5 compensation under a statutory taking.  The terms of  6 cession were construed to leave intact a "communal  7 usufrutuary occupation".  That's the phrase used in  8 the report.  9 THE COURT:  What was it again?  10 MR. GOLDIE:  "Communal usufructuary occupation."  11  12 Now, the statute deemed that to be the equivalent  13 of a fee simple for the purposes of compensation if it  14 was taken.  And the compensation was to be payable to  15 the chief and distributed under supervision to the  16 members of the community.  Now, all of that was done  17 by statute.  It was simply assumed or taken as a given  18 that no compensation was payable to a chief in respect  19 of unoccupied lands.  And I want to -- I am going to  20 refer to the report or the case at greater length, my  21 lord.  It is not in the grey books.  22 THE COURT:  All right.  23 MR. GOLDIE:  It is in the Plaintiffs' authorities at volume 1 at  24 tab 14.  25 THE COURT:  Oh, I have got it down as number A-14.  Is it not in  26 your grey book?  27 MR. GOLDIE:  No.  That is the Plaintiffs' authority, Volume 1,  28 tab 14.  29 THE COURT:  There it is.  30 MR. GOLDIE:  Page 410, my lord.  The contest was over the  31 question of the nature of the compensation to be paid.  32 That is indicated in the headnote at page 39.  But at  33 page 410, beginning with the first sentence in the  34 second paragraph with the words "The Crown".  That's  35 line 4 in the second paragraph.  36  37 "The Crown is under no obligation to pay anyone  38 for unoccupied lands as defined.  It will have  39 to pay the chief for family lands to which he  40 is individually entitled when taken.  There may  41 be other portions of land under his control  42 which he has validly allotted to strangers or  43 possibly even to members of his own clan or  44 community.  If he is properly deriving tribute  45 or rent from these allotments he will have to  46 be compensated for the loss of it.  And if the  47 allottees have had valid title conferred on 26640  1 them they must also be compensated."  2  3 And then at page 411, the first complete paragraph:  4  5 "Their Lordships will accordingly humbly advise  6 His Majesty that the judgment of the Courts  7 below should be reversed, and that declarations  8 should be made:  (1) That the appellant, for  9 the purposes of the Public Lands Ordinance No.  10 5 of 1903 is entitled to claim compensation on  11 the footing that he is transferring to the  12 Governor the land in question in full  13 ownership, excepting insofar as such land is  14 unoccupied."  15  16 THE COURT:  That doesn't mean that he is not transferring the  17 land that is unoccupied.  18 MR. GOLDIE:  Oh, no.  But he gets no compensation, my lord.  19 THE COURT:  Yes.  I think that's what it means.  20 MR. GOLDIE:  And that's because he has no -- he has no title in  21 that land.  22  23 Now, that case is cited by my friends as  24 justifying the reluctance to define the Plaintiffs'  25 alleged rights in terms familiar to Canadian law.  And  26 I say if one looks at the case, one sees that the  27 court came to grips with precisely that question.  It  28 looked at what was there and it said:  This is what  29 fits the statutory definition of a deemed fee simple  30 for purposes of compensation.  31  32 Now, I say at the top of page 5 of this insert --  33 THE COURT:  Well, what do you say about the dicta that your  34 friend relied upon?  He said that I should disregard  35 it on the basis that it applies only to that deemed  36 statutory scheme, or do you agree that the dicta has  37 any general usefulness or relevance?  38 MR. GOLDIE:  Well, it has the general usefulness for which it is  39 cited for on many occasions.  And that is that you  40 should be careful in the inquiry that you make as to  41 the nature of the interest.  But it doesn't ever go so  42 far as to say that that care translates into ambiguity  43 when you come to determine what that interest is.  44 THE COURT:  Or to an interest against the Crown?  45 MR. GOLDIE:  It is not, of course in this case, dealing with an  46 interest against the Crown in except in this sense.  47 What the chiefs in that case have was taken under a 26641  1 statute for a public purpose.  The statute --  2 THE COURT:  To that extent it was a claim against the Crown?  3 MR. GOLDIE:  Oh, yes, for compensation.  4 THE COURT:  Yes.  5 MR. GOLDIE:  My point is that the court had to grapple with the  6 question of just what that interest was for the  7 purposes of determining to which the statutory  8 direction of compensation was applicable.  9  10 Now, I do note this, my lord, that when we come  11 to -- when in our submission we come to define what  12 the proper scope of interest is, we will be assisted  13 by a greater degree of precision than my friends have  14 provided you with so far.  I am not quite sure what my  15 friend Mr. Grant meant on Saturday when he said  16 "pigeon holes are for pigeons".  If he meant that the  17 judicial committee had in mind that it was an exercise  18 in something other than legal logic to define  19 interest, I think, with great respect, he is wrong.  20 The judicial committee grappled with the problem.  And  21 it can be grappled with here.  Not in the terms put  22 forward by my friends who:  Well, give us a general  23 declaration and we will sort things out afterwards.  24 That is not what the Amodu case provides, or even  25 suggests.  26  27 Now, continuing at page 6 --  28 THE COURT:  Well, you are starting a new paragraph.  And you are  29 not close to the end of the section?  30 MR. GOLDIE:  Not close enough, my lord.  31 THE COURT:  No.  I think we should take the afternoon  32 adjournment.  33 THE REGISTRAR:  Order in court.  Court stands adjourned for a  34 short recess.  35 (PROCEEDINGS ADJOURNED AT 3:15)  36  37 I hereby certify the foregoing to  38 be a true and accurate transcript  39 of the proceedings transcribed to  40 the best of my skill and ability.  41  42  43  44  45 Lisa Franko,  46 Official Reporter,  47 UNITED REPORTING SERVICE LTD. 26642  Submissions by Mr. Goldie        1        (PROCEEDINGS RESUMED  PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Goldie?  4 MR. GOLDIE:  Thank you, my lord.  I was at page 5 of the -- page  5 6, I should say, of Section 5.  My lord, I submit that  6 to deny sovereignty in the terms we say is -- are  7 claimed by the plaintiffs is not to deny them the  8 right to internal, private autonomy, but it is to  9 subject that autonomy to the general law.  I referred  10 your lordship to the Hutterite Case where the Court  11 gave effect to the internal, but there was judicial  12 review of that.  It was not law which was beyond the  13 reach of the Court.  I say the following submissions  14 with respect to the plaintiffs' claimed heads of  15 jurisdiction illustrate this point.  First,  16 jurisdiction to harvest, manage and conserve the  17 resources of the territory.  18 These rights are among the rights incidental to  19 the beneficial ownership of land.  They flow from the  20 fact of ownership.  But within Canadian law the land  21 owner's proprietary rights are subject to regulation,  22 both federal and provincial.  23 And as I understand the position first taken by  24 Mr. Sterritt and his cross-examination and by the --  25 by counsel here for the plaintiffs, the -- in respect  26 to the declaration sought and in respect of the way in  27 which their beneficial ownership of land would be  28 worked out, it is -- it is based upon exclusive  29 possession and based upon the right to preclude the  30 application at least of provincial law.  31 Now, jurisdiction to transfer the territory and to  32 grant rights of access to the territory in accordance  33 with Gitksan and Wet'suwet'en laws.  My friend, Mr.  34 Grant, says that is now to be taken as included.  So  35 when I say deleted, I'm in error.  In any event, it is  36 my submission that it is uncertain whether the  37 plaintiffs continue to claim this jurisdiction as  38 jurisdiction or whether it is now said to be an  39 incident of the right of ownership, but it is  40 nonetheless important to observe that members of the  41 public have a general right of access to Crown lands  42 subject to whatever restrictions may be in force with  43 respect to particular uses of particular lands.  If,  44 within the community of the Gitksan and Wet'suwet'en,  45 there are recognizable rules governing access to what  46 are said to be traditional territories, and if there  47 is evidence of consent to such rules, then they may be 26643  Submissions by Mr. Goldie        1 enforceable against the  members of the community who  2 have expressly agreed to be bound by them.  As to such  3 people it is unnecessary to obtain the Court's  4 assistance either to describe these rules or to  5 enforce them.  But such rules have no application to  6 persons who have not expressly agreed to be bound.  7 The plaintiffs may regulate or restrict their own  8 access to lands but (apart from reserves), they may  9 not regulate or restrict the rights of access of  10 others.  If what they seek is the right to regulate or  11 restrict such access they ask this Court to declare  12 that in a significant part of British Columbia the  13 Legislative Assembly of the Province may not legislate  14 under heads 5 and 13 of the Constitution Act, 1867.  15 Such a denial is a denial of sovereignty.  16 Now, if I may comment a bit on that, my lord.  It  17 is clear that head 24 of Section 91 of the  18 Constitution Act precludes the application of  19 provincial laws or the -- under heads 5 and 13 to  20 reserve lands.  But once you step outside those  21 reserve lands, you are within the exclusive  22 legislative authority in respect of matters such as  23 access, regulation and use of the lands of the  24 province, and what the plaintiffs are asking for here  25 is to deny to the province the right granted it under  26 the Constitution Act of 1867 to legislate with respect  27 to public lands and matters of local importance.  28 Then continuing on page 8, jurisdiction to  29 determine citizenship, including clan and house  30 membership.  The plaintiffs point to no law of the  31 province which denies them the freedom to organize  32 their affairs in this way.  There is, I submit on this  33 point, no lis inter partes.  The jurisdiction claimed  34 is analogous to club membership:  Members of a club  35 are free to choose who they agree to admit as members,  36 subject perhaps to Charter considerations, if, for  37 example, club membership is a prerequisite to earning  38 a livelihood.  39 (iv)  Jurisdiction to regulate family relations,  40 including marriage and divorce.  As an internal matter  41 the Gitksan and Wet'suwet'en may choose not to  42 recognize the validity of marriages and divorces which  43 have not taken place pursuant to the rules recognized  44 within and consented to by members of the community.  45 They are free to do so.  But if, for example, a  46 divorce has not been granted pursuant to the Divorce  47 Act, then it will not be recognized as a valid divorce 26644  Submissions by Mr. Goldie        1 in Canadian law.  2 Now, I want to comment on that, my lord.  The  3 Derrickson v. Derrickson held that a division of  4 property, where that property was part of a reserve,  5 could not be undertaken in accordance with the  6 provincial law.  If I understand the plaintiffs'  7 position, if there are people in the  8 Gitksan/Wet'suwet'en nation who choose to live off  9 reserve, and there are a great many of them, the  10 plaintiffs ask that this -- that provincial laws  11 relating to family matters be inapplicable.  That is a  12 denial of sovereignty.  13 Page 9 I deal with items (v), (vi) and (vii)  14 altogether, jurisdiction to supervise the internal  15 affairs of the house, to conduct feasts and carry out  16 feast obligations and responsibilities in accordance  17 with Gitksan and Wet'suwet'en law, and jurisdiction to  18 resolve disputes within the house and between houses.  19 I say with respect to all of these that each is an  20 internal matter with respect to which there has been  21 no joinder of issue.  The analogy of club membership  22 also applies here.  Clubs have rules.  Club members  23 have rights and responsibilities inter se, and clubs  24 may have procedures for resolving internal disputes.  25 The plaintiffs already enjoy the freedoms claimed  26 under these headings, but such freedom is not  27 accompanied by immunity from the general law.  To say  28 that the plaintiffs have the capacity to resolve  29 disputes between house members is not to say that the  30 plaintiffs have a constitutional right to execute  31 trespassers.  That's an extreme example.  But,  32 nevertheless, it's one that we have heard of in the  33 course of this trial.  34 Page 10, the jurisdiction to enter into and  35 conduct international relations and settle disputes  36 with other aboriginal nations.  I don't want to  37 comment on that, my lord.  This was drafted at a time  38 when we were -- it was not clear to us what the  39 position was that my friends were taking on  40 international law and we'll refer to that before we  41 conclude our submission.  42 (ix)  Jurisdiction to make and enforce laws in  43 relation to the above.  As an internal matter, the  44 plaintiffs already enjoy the freedom to regulate their  45 activities inter se by means of ascertainable rules.  46 Such jurisdiction is consensual.  And that is the root  47 of it.  The laws in question bind no one save those 26645  Submissions by Mr. Goldie 1            who agree to be bound  by them, and they are subject to  2 the general law.  3 Now, to the extent -- if I may enlarge upon that,  4 to the extent that these laws are not consensual, then  5 the Court is being asked to supersede the authority of  6 Canada with respect to the Criminal Code.  And I  7 acknowledge that the plaintiffs say they are making no  8 such claim in this case.  But a general declaration to  9 make enforced laws in relation to all of the above  10 matters is one which leads very close to saying that  11 if not today, then certainly tomorrow both Canada and  12 British Columbia laws relate to enforcement of the  13 resolution of disputes.  And what happens if disputes  14 cannot be resolved peacefully will be that  15 jurisdiction will be superseded.  16 Now, my lord, I wanted to include a reference  17 which doesn't precisely fit here but is referable to  18 the matters which are in this Part III, and that is  19 with respect to Blackstone.  The plaintiffs assert a  20 variety of fundamental principles said to have become  21 well-established rules of the common law by the time  22 of the Royal Proclamation of 1763.  If the principles  23 contended for -- and this reference, my lord, to  24 Volume 1, Part II, page 21 is to the plaintiffs'  25 argument.  So if the principles contended for at that  26 reference were well established by 1763, it is to be  27 expected that they would find expression in  28 Blackstone's Commentaries.  They do not.  Instead what  29 is discussed is the important distinction (ignored by  30 the plaintiffs in their argument) between settled  31 colonies and colonies acquired by conquest or cession.  32 And I have attached to this extract the relevant  33 pages from Blackstone, being pages 104 and 105 to the  34 introduction.  And if I could refer your lordship to  35 page 104, last paragraph on that page, Mr. Justice  36 Blackstone had made reference -- had referred to the  37 islands of Jersey, Guernsey, Sark, Alderney, and their  38 appendages.  And then he goes on in the last  39 paragraph, and I quote:  40  41 "Besides these adjacent islands, our more  42 distant plantations in America, and elsewhere,  43 are also in some respects subject to the  44 English laws.  Plantations, or colonies in  45 distant countries, are either such where the  46 lands are claimed by right of occupancy only,  47 by finding them desert and uncultivated, and 26646  Submissions by Mr. Goldie        1 peopling them  from the mother country; or  2 where, when already cultivated, they have been  3 either gained by conquest or ceded to us by  4 treaties.  And both these rights are founded  5 upon the law of nature, or at least upon that  6 of nations.  But there is a difference between  7 these two species of colonies, with respect to  8 the laws by which they are bound.  For it is  9 held, that if an uninhabited country be  10 discovered and planted by English subjects, all  11 the English laws are immediately there in  12 force.  For as the law is the birthright of  13 every subject, so wherever they go they carry  14 their laws with them.  But in conquered or  15 ceded countries that have already laws of their  16 own, the king may indeed alter and change those  17 laws; but till he does actually change them,  18 the ancient laws of the country remain, unless  19 such as are against the law of God, as in the  20 case of an infidel country."  21  22 And then he goes on to say:  23  24 "Our American plantations principally of this  25 latter sort, being obtained in the last century  26 either by right of conquest and driving out the  27 natives (with what natural justice I shall not  28 at present enquire) or by treaties.  And  29 therefore the common law of England, as such,  30 has no allowance or authority there; they being  31 no part of the mother country, but distinct  32 (though dependent) dominions."  33  34 The effect of this was commented upon by Mr. Justice  35 Blackburn.  36 THE COURT:  What year is Blackstone writing this?  37 MR. GOLDIE:  I thought it was 1865.  38 THE COURT:  1765.  39 MR. GOLDIE:  1765.  40 THE COURT:  M.DCC. would be 17.  41 MR. GOLDIE:  That's what I was working out rather painfully, but  42 Mr. Plant was good enough to tell me what the answer  4 3 was.  44 THE COURT:  Well, I think M.DCC is 1700.  45 MR. GOLDIE:  That's correct.  And then 65 is —  4 6 THE COURT:  50, 10, 5.  47 MR. JACKSON:  I think the first page of the commentary is -- at 26647  Submissions by Mr. Goldie 1            the first line there's  reference to 1765.  2 MR. GOLDIE:  Thank you.  3 THE COURT:  First page of the commentary.  4 MR. GOLDIE:  Yes.  At page 104, my friend Mr. Jackson points  5 out, being completed in this present year 1765.  6 I want to bring your lordship's attention once  7 again to the comments of Mr. Justice Blackburn in  8 Milirrpum.  And that's at page 8 -- or paragraph 8.  9 And I say in this context observations of Mr. Justice  10 Blackburn in Milirrpum at pages 206-7 are of  11 assistance.  And he says:  12  13 "You must regard as of some significance the  14 fact that there is no trace of any doctrine of  15 communal native title in Blackstone's  16 Commentaries, first published in 1765.  I do  17 not think it is sufficient to reply that  18 Blackstone professed to treat only of English  19 law.  The title of the fourth section of his  20 introduction is "Of the countries subject to  21 the Laws of England" and with proper  22 qualifications in each case he deals  23 successively with Wales, Scotland, Berwick upon  24 Tweed, Ireland, the Isle of Man, the Channel  25 Island, and "Our more distant plantations in  26 America, and elsewhere".  It is true that he  27 makes only cursory reference to the differences  28 between English law and the laws of those  29 places.  But to explain the absence from  30 Blackstone of any mention of a doctrine which  31 is said to be a doctrine of the common law in  32 1788, or in our case 1763, it is necessary to  33 say either that the doctrine did not exist in  34 1765 and yet had become established in 1788, or  35 alternatively to say that Blackstone made a  36 significant error of omission.  37  38 "A possible line of reasoning from the doctrine  39 that in settled colonies English law applies so  40 far as it is applicable, is as follows.  If  41 that is correct and exhaustive, then the  42 doctrine of communal native title does not  43 apply in any territory as a doctrine of the  4 4 common law. "  45  46 That emphasis is, of course, mine.  47 26648  Submissions by Mr. Goldie        1 "It does not  apply in a settled colony because  2 ex hypothesi it is not part of the law of  3 England.  It does not apply in a conquered or  4 ceded colony unless it is either part of the  5 existing law which the conqueror is bound to  6 respect, or it is expressly applied by the  7 conqueror as an act of State; in either case it  8 is ex hypothesi not a doctrine of the common  9 law.  The conclusion is that if it applies in  10 any territory, it applies otherwise than as a  11 doctrine of the common law."  12  13 Now, I go to Section III, and I refer firstly  14 to --  15 THE COURT:  I'm sorry.  You mean Section 4?  16 MR. GOLDIE:  No.  I dealt with Section 4  17 THE COURT:  You went to 5, yes.  18 MR. GOLDIE:  I dealt with 5 in III and I'm now in II, my lord.  19 I'm now going to deal with Section III.  And I skip  20 down to paragraph numbered 3 on the first page.  As  21 has been submitted, the position of the province is  22 that any aboriginal interest in British Columbia  23 consists of the Indian interest in the lands set  24 aside.  25 THE COURT:  I'm sorry, Mr. Goldie.  I'm not with you.  Where are  26 you?  27 MR. GOLDIE:  The heading is Part III, Section 3, aboriginal  28 title.  2 9 THE COURT:  Yes.  I have that.  30 MR. GOLDIE:  And I jumped down to paragraph numbered 3.  31 THE COURT:  Oh, I see.  All right.  Yes.  Thank you.  32 MR. GOLDIE:  And I'm taking -- starting with the second  33 sentence.  34 THE COURT:  Yes.  I'm with you now.  35 MR. GOLDIE:  As has been submitted, the position of the Province  36 is that any aboriginal interest in British Columbia  37 consists of the Indian interest in the lands set aside  38 as reserves for their use and benefit.  It is clear  39 that the members of the bands in the claim area have  40 an interest in the reserves set aside for them.  But  41 apart from their rights as ordinary citizens, and  42 apart from the limitations on provincial legislative  43 jurisdiction imposed by head 24 of Section 91 of the  44 Constitution Act, (which constrain, among other  45 things, the Province's ability to legislate directly  46 with respect to Indian hunting and fishing), the  47 plaintiffs have no rights, aboriginal or otherwise, to 26649  Submissions by Mr. Goldie        1 lands and resources  outside the reserves.  Subject to  2 regulation, they enjoy hunting and fishing rights over  3 unoccupied Crown lands.  And I say with respect to  4 such rights, that those are shared with all others,  5 whether aboriginal or non-native.  Now, the method of  6 sharing is determined by the regulation, but it is  7 nonexclusive.  8 And I say that it is respectfully submitted that  9 Calder, read carefully, is not authority to the  10 contrary.  11 The judgments of Mr. Justice Judson and Mr.  12 Justice Hall are the bases for the claim that a  13 non-proprietary aboriginal right may arise under the  14 common law of Canada.  This was the conclusion reached  15 in Baker Lake and by Mr. Justice Dickson (as he then  16 was) in Guerin.  17 THE COURT:  I think he was chief justice then, wasn't he?  18 Guerin is only a few years ago.  19 MR. GOLDIE:  I'm beginning not to trust any recollection of  2 0 mine.  21 THE COURT:  Well, I'm not either.  Doesn't really matter.  I  22 don't think he will be offended.  23 MR. GOLDIE:  It just adds to the errata.  Yes.  The chief  24 justice, my colleague tells me, was still Chief  25 Justice Laskin, but he took no part in the judgment.  2 6 THE COURT:  That's how quickly the years have gone by.  27 MR. GOLDIE:  The — I — before I go on, I should point out that  28 in Baker Lake, Mr. Justice Mahoney said that if the  29 claim had been proprietary, it would have been  30 extinguished by virtue of the Charter.  He makes that  31 distinction between non-proprietary and proprietary.  32 Perhaps I ought to refer your lordship to where he  33 says that.  It's -- it is B-2.  It's Volume 1 of  34 the -- of the defendant's authorities, Tab B-2.  It's  35 in the -- this is at page 577.  And it's in the  36 context of determining whether the mining laws  37 applicable to the Northwest Territories must be taken  38 as extinguishing the native title, which he found was  39 not affected by the Royal Charter, of the grant to the  40 Hudson's Bay Company of 1670.  And on page 577 after  41 reciting Section 8 of the Territorial Lands Act, he  42 said, and I quote:  43  44 "Canadian courts have, to date, successfully  45 avoided the necessity of defining just what an  46 aboriginal title is.  It is, however, clear  47 that the aboriginal title that arises from the 26650  Submissions by Mr. Goldie        1 Royal  Proclamation is not a proprietary right.  2 If the aboriginal title that arose in Rupert's  3 Land independent of the Royal Proclamation were  4 a proprietary right, then it would necessarily  5 have been extinguished by the Royal Charter of  6 May 2, 1670, which granted the Hudson's Bay  7 Company ownership of the entire colony.  Their  8 aboriginal title does not make the Inuit  9 'holders of surface rights' for purposes of the  10                   section."  11  12 Now, that's consistent with another observation he  13 makes, which is that a grant by the Hudson's Bay  14 Company to a third party is inconsistent with  15 aboriginal title of the non-proprietary sense -- the  16 non-proprietary type that he found.  17 THE COURT:  I'm having some difficulty.  You're reading a  18 different report, I think.  19 MR. GOLDIE:  Well, it should not —  2 0 THE COURT:  What —  21 MR. GOLDIE:  Does your lordship have B-2 two in Volume 1 of the  22 grey book?  23 THE COURT:  No, I don't.  I have B-l.  Oh, that's —  24 MR. GOLDIE:  B-l —  25 THE COURT:  B-l is an earlier judgment.  26 MR. GOLDIE:  B-l is an interlocutory judgment.  27 THE COURT:  That's my problem.  28 MR. GOLDIE:  The Federal Court judgment that is referred to in  29 the text is at 556, is his analysis of the Calder --  30 Calder judgment, my lord.  31 THE COURT:  Yes.  32 MR. GOLDIE:  He says at the bottom of that:  33  34 "While it appears that the judgment of Pigeon  35 J. embodies the ratio decidendi of the Supreme  36 Court, the clear agreement of the other six  37 judges on the point is solid authority for the  38 general proposition that the law of Canada  39 recognizes the existence of an aboriginal title  40 independent of the Royal Proclamation or any  41 prerogative act of legislation.  It arises at  42 common law. "  43  44 That's what I now wish to examine.  I -- my digression  45 was simply to refer to the effect that he would have  46 found if the -- he considered the claim made in Baker  47 Lake to be proprietary in nature. 26651  paragraph  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Goldie        1 I'm back to  6 on page 2.  In Calder the  British Columbia Court of Appeal concluded, as stated  in the headnote at (1970) 74 W.W.R. -- and that is in  the -- in the yellow binder under Tab III/3-6:  "... there was no"...  And I'm quoting in part from the headnote.  "... there was no treaty, statute, or agreement  having statutory effect... conferring upon them  (plaintiffs) title to the lands in question...  The onus was on the appellants"...  Which were the Nishga at this point.  "... to establish that by some prerogative act  could be inferred, the Crown had ensured to the  Nishga Nation aboriginal rights in the lands in  question which could be enforced in the courts  of the province; the appellants had failed to  discharge this onus."  The ratio of the outcome of the appeal to the  Supreme Court of Canada is that the action could not  be brought for want of a fiat to proceed under a  Petition of Right.  The aboriginal title issue in Calder was defined  by the terms of the declaration sought "that the  aboriginal title, otherwise known as Indian title, of  the plaintiffs to their ancient tribal territory  hereinbefore described has never been lawfully  extinguished".  And that is a quotation from -- from  page 313 of Calder, which is found in the next tab in  the yellow book.  The plaintiffs did not directly ask  the Court whether they had such title but rather,  assuming they had, was it ever extinguished.  That was  the question before the Court.  The allegation that the area claimed in the action  was in fact the ancient tribal territory of the Nishga  was admitted.  For the purpose of adjudicating with respect to  the relief sought it was unnecessary to determine  whether aboriginal title existed, let alone its form  or content.  The judgment of Mr. Justice Judson responded to  the issue before the Court as follows at S.C.R. page 26652  Submissions by Mr. Goldie        1 344.  And that's in the  next tab of the yellow book.  2 And I quote:  3  4 "In my opinion, in the present case, the  5 sovereign authority elected to exercise  6 complete dominion over the lands in question,  7 adverse to any"...  8  9 And I emphasize the word "any".  10  11 "... any right of occupancy which the Nishga  12 tribe might have had, when, by legislation, it  13 opened up such lands for settlement, subject to  14 the reserves of land set aside for Indian  15 occupation."  16  17 I say that he accepts the hypothesis of the  18 question -- the hypothesis of the declaration sought,  19 which was that there was an aboriginal title.  20 In paragraph 12 I say the evidence in the case at  21 bar has shown the frailty of the admission with  22 respect to the occupancy of the claim -- occupancy of  23 the land in the claim made by the Nishga.  It was  24 disputed at the time and is disputed still.  25 Now, the references to that, my lord, occur in the  26 next tabs in the yellow binder beginning with Tab 12.  27 And the first item is a letter addressed to His  28 Majesty's privy council, Port Simpson, March -- I  29 think it's March, 10th, 1919, signed by Henry D.  30 Pierce on behalf of the United Tribes of B.C.  And he  31 starts off in paragraph one saying that:  32  33 "I was requested by the representatives of the  34 United Tribes of B.C. to forward to you the  35 dispute between the Nishgas and the Tsimsheans.  36 This dispute is a stumbling block in the way of  37 the Tsimsheans, and the other eight tribes  38 connected with the Port Simpson by agreement.  39 The Port Simpson with the other tribes cannot  40 agree in making the Nishga petition a test  41 case, because in the said petition the Nishgas  42 in setting forth a description of the land  43 which they claim as theirs lay claim to land  44 which the Port Simpson people include in their  45 own tribal claim."  46  47 Now, your lordship may recall that the land in 26653  Submissions by Mr. Goldie        1 question in the Calder  case was based upon the 1913  2 petition.  And then at the bottom of the page they say  3 they met with the chiefs and representatives but could  4 come to no settlement re the -- I think it's the Nass.  5 THE COURT:  Yes.  6 MR. GOLDIE:  And then over the page about midway down the first  7 paragraph:  8  9 "The United Tribes of B.C. are afraid that  10 should the Nishga petition be successful before  11 the Privy Council, that the description of the  12 Nishga land as therein set forth would be more  13 or less binding, and that the Tsimsheans would  14 be powerless to present their counterclaim."  15  16 And then at the beginning of the next paragraph:  17  18 "Mr. O'Meara assured the meeting ..."  19  20 That was a meeting that -- well, I should say your  21 lordship has probably heard of Mr. O'Meara, but he was  22 a very active advisor to the Northern Indians for a  23 period which extended from well before 1919 right  24 straight through to shortly after 1927.  At any rate,  25 in the second paragraph:  26  27 "Mr. O'Meara assured the meeting that he could  28 guarantee that the Nishga would agree to any  29 suggestion he made to them in reference to  30 meeting the objections of the Tsimsheans."  31  32 But in fact they say -- Mr. Pierce said that they  33 hadn't.  So, as I say, that's an indication of the  34 frailty of the admission that was made.  35 And then following that, my lord, beginning at  36 page 4, our -- substantially the extracts from Exhibit  37 454 followed, and following that are transcript  38 references from the cross-examination of Mr. Sterritt  39 on those extracts from Mr. Sterritt's notebooks.  And  40 the -- the particular episode in question was a  41 meeting with the -- with the Nishga and the Gitksan  42 and the Kitwancool in October of 1984.  And Mr.  43 Sterritt heads up the first page with the words  44 "Nishga Feast, October 27th, 1984, opening ceremony",  45 then attributes to Mr. Gosnell, whom he identified as  46 Mr. Jimmy Gosnell, quote, "overlap is not serious",  47 unquote.  And I'm not going to take your lordship 26654  Submissions by Mr. Goldie        1 through that, but the  the whole tenor of the  2 meeting was the complaints basically on the part of  3 the Kitwancool; that they had stood by while the  4 Nishga were in Court in the Calder case, saying  5 nothing about the fact that in their eyes a portion of  6 the claim area fell within lands historically and  7 traditionally claimed by the Kitwancool.  And I say  8 that from the -- from the evidence that appears in  9 these notebooks, the Kitwancool view was that they had  10 connived at misleading the Court as to the true and  11 lesser extent of Nishga occupancy, and I add so as not  12 to embarrass the Nishga when their claim was in the  13 courts in the Calder action.  14 Now, in any event, in paragraph 13 --  15 THE COURT:  Was there not a letter about that?  16 MR. GOLDIE:  Beg your pardon, my lord?  17 THE COURT:  Was there not a letter about that somewhere?  18 There's a letter in evidence that describes that  19 unusual situation.  20 MR. GOLDIE:  The only letter that I — that I recall is the  21 earlier one, but I'll look for that.  22 THE COURT:  I'm sure there's a letter somewhere.  23 MR. GRANT:  Yes.  And I also — my friend doesn't refer to this,  24 but Mr. Marsden was questioned on this and explained  25 that it was a question that they understood the issue  26 of Calder was extinguishment.  He was examined on that  27 and my friend in saying this -- he cross-examined a  28 Kitwancool chief on the very point and makes no  29 reference to that.  And my recollection is that Mr.  30 Marsden did explain it in its context as to why the  31 Kitwancool did not intervene in the Calder case and  32 clarified that.  33 MR. GOLDIE:  I rely upon the statements recorded by Mr. Sterritt  34 at the time.  35 THE COURT:  All right.  36 MR. GOLDIE:  And the explanation that was given at the time --  37 at the time of this feast was that they did not want  38 to embarrass the Nishga.  39 THE COURT:  I'm sure there's a letter about that.  4 0 MR. GRANT:  Yes.  41 MR. GOLDIE:  I have no doubt, my lord, but I'm relying upon the  42 contemporaneous evidence as acknowledged by Mr.  43 Sterritt, who was there.  44 I am at paragraph 13.  Based on the key admissions  45 of fact, Mr. Justice Judson -- oh, I should add, which  46 I assume was obvious, that the claim area in this case  47 includes lands claimed by the Nishga in Calder.  Now, 26655  Submissions by Mr. Goldie        1 the -- my recollection  of my friend's submission here,  2 and I am again adding to what is at paragraph 12,  3 is -- my recollection of Mr. Grant's submission is  4 that there is no proof that the Nishga have the right  5 to claim aboriginal rights or interests.  Now, at this  6 feast their right to do so is not questioned by the  7 Gitksan.  The issue was the overlap as recorded by Mr.  8 Sterritt on the first page of his notes of Exhibit  9 454.  Mr. Gosnell said the overlap is not serious.  It  10 was later characterized by the head of the Kitwancool  11 as aggression.  12 Now, based on the key admissions of fact, Mr.  13 Justice Judson held that the right, the existence of  14 which was implied in the declaration prayed for by the  15 plaintiffs, was an equitable one dependent on the good  16 will of the Sovereign - that is to say, that its very  17 existence was dependent on the Crown's recognition of  18 it.  19 I say that he made no finding that the Crown had  20 in fact recognized the non-proprietary claim that was  21 before the Court.  He proceeded upon the premise of  22 the British Columbia Court of Appeal, stated at S.C.R.  23 at page 329, which is under Tab 14, in these words.  24 It was the opinion of the British Columbia courts  25 "...that this right, if it ever existed, had been  26 lawfully extinguished..."  And that was the premise  27 upon which he proceeded to examine the case.  And he  28 came to the conclusion that if it ever existed, it had  29 been lawfully extinguished, but not for the same  30 reason that the court of appeal based its judgment on,  31 at least in part.  32 Now, after reviewing the limited material before  33 the Court, which, as to the pre-1871 colonial  34 material, was basically limited to the yellow book -  35 Exhibit 1182 in the case at bar - and the 13 Colonial  36 Ordinances, so-called Calder 13, he applied the  37 reasoning of the Supreme Court of the United States in  38 Tee-Hit-Ton Indians v. United States.  And that  39 becomes evident from the -- his judgment at page 344,  40 which is under the Tab 14.  He says in the middle of  41 the page there, the top half of the page:  42  43 "In my opinion in the present case the  44 sovereign authority elected to exercise  45 complete dominion over the lands in question,  46 et cetera, adverse to any right of occupancy  47 which the Nishga tribe might have had, et 26656  Submissions by Mr. Goldie        1 cetera."  2 Then he goes on to say:  3  4 "We were not referred to any cases subsequent  5 to Tee-Hit-Ton and the question of compensation  6 for claims arising out of original Indian  7 title.  The last word on the subject from the  8 Supreme Court of the United States is therefore  9 that there is no right to compensation for such  10 claims in the absence of a statutory direction  11 to pay."  12  13 Then he says:  14  15 "I note the concluding paragraph in the reasons  16 for judgment in Tee-Hit-Ton.  In my opinion it  17 has equal application to the appeal now before  18 us."  19  2 0 And then I go down to the quotation about midway  21 through it beginning with the words "Our Conclusion".  22 And that reads:  23  24 "Our conclusion does not uphold harshness or as  25 against tenderness towards the Indians, but it  26 leaves with congress, where it belongs, the  27 policy of Indian gratuities for the termination  2 8 of Indian occupancy and government owned land  29 rather than making compensation for its value a  30 rigid constitutional principle."  31  32 Now, I can find nowhere in his judgment a finding  33 that the common law of Canada recognized, in a manner  34 enforceable in a court of law, the non-proprietary  35 claim of the Nishga to the use and occupancy of the  36 lands they claimed.  37 Now, in contrast, my lord, Mr. Justice Hall, I say  38 in dissent -- I should say more accurately the other  39 view -- would have found for the Nishga.  He was  40 clearly of the opinion that the Nishga had aboriginal  41 title in respect of the ungranted portions of the  42 claimed area, both by reason of the admitted fact of  43 historic occupation and by reason of the application,  44 in his view, of the Royal Proclamation of 1763 within  45 British Columbia.  46 Now, I submit that Mr. Justice Hall's reasons on  47 the aboriginal title issue may, properly speaking, be 26657  Submissions by Mr. Goldie        1 obiter.  However, he  observed that the Supreme Court  2 Report, page 352 --  3 THE COURT:  What do you say the ratio of his judgment was?  4 MR. GOLDIE:  Well, the application to the Royal Proclamation.  5 THE COURT:  You think that's what he based his judgment on?  6 MR. GOLDIE:  I think so, my lord, because the admitted fact of  7 historic occupation, I think, was -- was accepted by  8 him without -- without examination.  9 THE COURT:  Well —  10 MR. GOLDIE:  He dealt with — of course he had to deal with  11 the -- the submission with respect to the colonial  12 ordinances and with respect to them, in my submission,  13 his conclusion was based upon the proposition, very  14 broadly speaking, that those ordinances so far as they  15 purported to extinguish title were ultra vires.  16 THE COURT:  But surely assuming -- surely on the basis of the  17 admission at least he -- he found aboriginal title,  18 did he not, apart from the Royal Proclamation?  19 MR. GOLDIE:  Yes.  I think that's so, my lord.  20 THE COURT:  Based on the admission?  21 MR. GOLDIE:  Yes.  Perhaps I skipped one element of my answer to  22 your lordship.  23 THE COURT:  All right.  24 MR. GOLDIE:  And that was that the -- the ratio is founded upon  25 the admission -- the judgment so far as occupation is  26 founded on an admission.  And I was about to draw your  27 lordship's attention to his observation at page 352,  28 which is under Tab 17.  And he observed this, and I  2 9 quote:  30  31 "... The exact nature and extent of the Indian  32 right or title does not need to be precisely  33 stated in this litigation."  34  35 Now, I'm not sure what he refers to in the words "and  36 extent", but be that as it may, he continues:  37  38 "The issue here is whether any right or title  39 the Indians possess as occupants of the land  40 from time immemorial has been extinguished.  41 They ask for a declaration that there has been  42 no extinguishment...."  43  44 And it will be submitted that his lordship's  45 judgment contains errors of historical fact which  46 undermine its authority, particularly with respect to  47 the application within British Columbia of the Royal 26658  Submissions by Mr. Goldie        1 Proclamation.  2 The conclusion of Mr. Justice Hall that Indians in  3 British Columbia have an undefined right over tribal  4 territories by virtue of their occupancy of such lands  5 from time immemorial relies on much jurisprudence from  6 other jurisdictions, including, in particular, the  7 celebrated decisions of the U.S. Supreme Court in  8 Johnson v. Mcintosh and Worcester v. Georgia.  9 Reliance on American jurisprudence also appears in the  10 judgments in Baker Lake and Guerin.  And indeed if I  11 may add to that, the plaintiffs here rely upon the  12 same sources, not in support of the non-proprietary  13 claim of ownership, but in support of their  14 proprietary claim.  15 I say in paragraph 20 it will be seen that the  16 U.S. courts have propounded a doctrine of aboriginal  17 title which, for present purposes, has these essential  18 characteristics:  The nature and extent of the  19 aboriginal interest falls to be determined in  20 accordance with an analysis of the historical  21 relations between the Crown (or its successors) and  22 its Indian subjects.  Thus, in my submission, the U.S.  23 doctrine of aboriginal title is historically  24 contingent.  25 THE COURT:  Contingent upon a relationship with the Crown?  26 MR. GOLDIE:  Contingent upon an analysis of the historical  27 relationship.  2 8  THE COURT:  Yes.  29 MR. GOLDIE:  The Indian interest recognized by the U.S. courts  30 is a possessory right in respect of lands actually  31 used and occupied by them.  Once recognized, it is a  32 legal right.  Indians holding land on the basis of  33 aboriginal use and occupancy have no alienable  34 interest in such lands.  35 The American doctrine of aboriginal title offers  36 no support for the claim to ownership and  37 jurisdiction -- that is my submission and I'll develop  38 it at some detail -- and is fully consistent with the  39 proposition that it is open to the Crown as sovereign  40 to attribute such rights to the aboriginal inhabitants  41 of a newly-acquired territory as it chooses.  42 If the view of Calder expressed above be correct,  43 then the cases which have purported to follow Calder  44 must be re-examined.  For example, the statement of  45 Mr. Justice Mahoney in Baker Lake at 556, that, and I  46 quote, "the clear agreement" of six judges is  47 authority for the proposition that aboriginal title 26659  Submissions by Mr. Goldie        1 arises at common law,  with respect, reads too much  2 into the judgment of Mr. Justice Judson.  Bear Island  3 builds on this error, as, with respect, so does that  4 of Mr. Justice Dickson, as he then was, in Guerin.  5 Now, in Guerin it was decided that the interest of  6 a band in reserve lands held for its use under the  7 "Indian Act" of Canada gave rise to a fiduciary  8 responsibility on the part of Canada when the band's  9 wishes were disregarded in the disposition of the  10 reserve lands surrendered to the Crown under the  11 provisions of that Act.  Of the eight judges who  12 decided the case, three joined Mr. Justice Dickson in  13 his description at page 382.  I think that comes  14 later.  Anyway, at any rate, at that page he describes  15 the sui generis Indian interest in reserve lands as  16 characterized by two features:  General inalienability  17 and a fiduciary obligation arising upon surrender to  18 the Crown.  Two joined with Madam Justice Wilson in  19 describing the band's interest in its reserve lands by  20 reference to the above-quoted excerpt from St.  21 Catherine's Milling and one, Mr. Justice Estey, agreed  22 that the personal nature of the interest was settled  23 by St. Catherine's Milling and Ontario Mining v.  24 Seybold, then recently reaffirmed by Smith v. The  25 Queen (1983) 1 S.C.R. 554.  26 Now, Mr. Justice Dickson at page 379 -- and this  27 is under Tab 24 -- said, and I quote:  28  29 "It does not matter, in my opinion, that the  30 present case is concerned with the interest of  31 an Indian band in a reserve rather than with  32 unrecognized aboriginal title in traditional  33 tribal lands.  The Indian interest in the land  34 is the same in both cases.  See Attorney  35 General for Quebec v. Attorney-General for  36 Canada, (the Star Chrome case).  It is worth  37 noting, however, that the reserve in question  38 here was created out of the ancient tribal  39 territory of the Musqueam Band by the  40 unilateral action of the colony of British  41 Columbia prior to confederation."  42  43 Now, just leaving aside for future comment the  44 accuracy of his lordship's observations, I note that  45 his observations with respect to the similarity  46 between the interest of an Indian in a reserve and  47 unrecognized aboriginal title in traditional tribal 26660  Submissions by Mr. Goldie        1 lands are obiter,  having regard to what he was then  2 doing, and that is dealing with the obligations of  3 Canada upon -- to the band upon the surrender of  4 reserve lands in the instance -- in the case then at  5 bar, where Canada did not deal with those lands in  6 accordance with the directions of the band or  7 directions of the circumstances of the surrender.  8 In Kruger and Manuel v. The Queen, his lordship  9 stated, and I quote:  10  11 "... a sound rule to follow is that questions  12 of title should only be decided when title is  13 directly in issue.  Interested parties should  14 be afforded an opportunity to adduce evidence  15 in detail bearing upon the resolution of the  16 particular dispute."  17  18 Now, of course, the province was not a party to  19 Guerin and it is difficult to see how the observations  20 of his lordship on aboriginal title can have  21 application beyond the narrow (although significant)  22 question of the source of the federal Crown's  23 fiduciary obligation to Indians.  24 Now, in any event, the passage from his lordship's  25 judgment quoted above is, with respect, not altogether  26 easy to follow.  And the interest -- the quotation I'm  27 referring to is the one that is at page 379 of the  28 judgment.  By the phrase "the Indian interest in the  29 land" his lordship may have meant only an interest  30 internal to the Indians, as opposed to a legally  31 enforceable right against the Crown.  The phrase  32 "unrecognized aboriginal title" is difficult to apply  33 to British Columbia, where a legal interest in lands  34 used and occupied by the natives was created in the  35 colony and given effect by the withdrawal of lands,  36 called reserves, from the category of unoccupied  37 public lands open to pre-emption.  The observations of  38 his lordship, with respect, do not amount to a ruling  39 that an unrecognized aboriginal interest in tribal  40 lands exists in British Columbia.  41 In describing the Indian interest in reserves as  42 "the same" as their interest in "traditional tribal  43 lands", his lordship may have had in mind the  44 situation in British Columbia where the lands  45 withdrawn from pre-emption and set aside for the  46 Indian inhabitants were the lands actually occupied by  47 them.  And I will be expanding upon that when I come 26661  Submissions by Mr. Goldie        1 to deal with the  creation of the reserves.  It would  2 not be an apt description in the case of the numbered  3 treaties on the Prairies where all the lands occupied  4 or used were surrendered and reserves were thereafter  5 created.  However, the reference to the Star Chrome  6 case -- and the reference to the Star Chrome Case  7 suggests that his -- that what his lordship had in  8 mind was not all that precise.  In the Star Chrome  9 case, Mr. Justice Duff when construing two  10 pre-Confederation statutes of the Province of Canada  11 said the view that the 1850 Act was passed for the  12 purpose of affording legal protection for the Indians  13 in the enjoyment of property occupied by them or  14 appropriated to their use, and of securing a legal  15 status for benefits to be enjoyed by them.  16 And then he goes -- I've set out the -- the -- the  17 quotation.  It's not -- it's not sidelined, my lord.  18 And I'm not sure that the correct part is under the  19 tab number.  Perhaps I should look at the report of  20 the case itself.  That's A.G. Quebec v. A.G. Canada.  21 And it's in the plaintiffs' book of authorities Volume  22 1 Tab 10, yes, at page -- the reference that I have in  23 mine is at page 410.  It's the third paragraph  24 beginning with the words "The object of the Act of  25 1850".  2 6  THE COURT:  Yes.  27 MR. GOLDIE:  28 "The object of the Act of 1850"...  29  30 And if I may interject here, that was the Act of  31 appropriation of the reserves in question.  32 Continuing:  33  34 "... as declared in the recitals already  35 quoted, is to make better provision for  36 preventing encroachments upon the lands  37 appropriated to the use of Indian tribes and  38 for the defence of their rights and privileges,  39 language which does not point to an intention  40 of enlarging or in any way altering the quality  41 of the interest conferred upon the Indians by  42 the instrument of appropriation or other source  43 of title.  And the view that the act was passed  44 for the purpose of affording legal protection  45 for the Indians and the enjoyment of property  46 occupied by them or appropriated to their use  47 and of securing a legal status for benefits to 26662  Submissions by Mr. Goldie        1 be enjoyed by  them receives some support from  2 the circumstance that the operation of the Act  3 appears to extend to lands occupied by Indian  4 tribes in that part of Quebec which, not being  5 within the boundaries of the Province as laid  6 down in the proclamation of 1763, was subject  7 to the pronouncements of that proclamation in  8 relation to the rights of Indians, a region in  9 which the Indian title was still in 1850, to  10 quote the words of Lord Watson, 'a personal and  11 usufructuary right dependent upon the goodwill  12 of the sovereign'."  13  14 Now, that is a -- not an easy section to follow,  15 especially as the lands in question were in fact  16 within the boundaries of the old province of Quebec.  17 The word not -- I should go back and explain to your  18 lordship my comment.  19 THE COURT:  Are you suggesting, Mr. Goldie, that aboriginal  20 title arose in other parts of Canada either or both by  21 reason of possession and -- and the Royal  22 Proclamation?  23 MR. GOLDIE:  Well, the Royal Proclamation in respect of the  24 geographic area to which it applied created in one of  25 its provisions a reserve.  2 6 THE COURT:  Yes.  27 MR. GOLDIE:  The areas excluded included, if I may put it that  28 way, the new colony of Quebec.  29 THE COURT:  Did they exclude all of those colonies?  30 MR. GOLDIE:  No, no.  Just the new colony of Quebec.  31 THE COURT:  It was excluded from the operation of the --  32 MR. GOLDIE:  It was excluded from the reserve.  33 THE COURT:  All right.  Yes.  Okay.  Yes.  Right.  34 MR. GOLDIE:  Now, within the reserve there was created for the  35 present a reserve.  36 THE COURT:  Within the colony or within the reserve?  37 MR. GOLDIE:  Within the reserve.  38 THE COURT:  That is outside the colony?  39 MR. GOLDIE:  Outside -- it was confined to the ceded or  40 conquered territories except for -- I shouldn't say  41 except for, but it excluded from the reserve, as I  42 say, the new colony of Quebec, which was equally one  43 that was conquered and ceded as a result of the  44 conquest.  45 THE COURT:  The land they're talking about in this case, was it  46 within the new colony of Quebec?  47 MR. GOLDIE:  Yes, it was.  And the word — the word "not" in Mr. 26663  Submissions by Mr. Goldie        1 Justice Duff's  statement, which I have quoted from, is  2 in error because the -- the lands themselves were in  3 the eastern townships.  4 THE COURT:  Where is the reference to "not"?  5 MR. GOLDIE:  It is -- does your lordship have the report in  6 front of you?  7 THE COURT:  Yes.  Page 410.  8 MR. GOLDIE:  Page 410.  One, two, three, four, five lines from  9 the bottom where he says "Appears to extend to lands  10 occupied by Indian tribes in that part of Quebec,  11 which not being one within the boundaries of the  12 province, was subject to the pronouncements of the  13 proclamation".  Now, that would mean that he thought  14 he was talking about the reserve created by the Royal  15 Proclamation.  16 THE COURT:  Which had to be outside the boundaries?  17 MR. GOLDIE:  Which would have to be outside the boundaries of  18 the colony created by the Royal Proclamation.  Now, I  19 think if that —  20 THE COURT:  But by 1850 the province had been established.  21 MR. GOLDIE:  Oh, the province's boundaries as originally created  22 last only until 1774.  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  Then it was greatly enlarged.  Then as a result of  25 the American revolution, the boundaries of the -- of  26 Quebec were cut back.  And then, of course, the --  27 there was the creation of Upper and Lower Canada, then  28 the province of -- the Province of Canada and finally  29 Confederation.  I will bring up -- no.  I think I may  30 have it here -- a map which shows the boundaries of  31 the treaties.  32 THE COURT:  What I'm trying to get at is are you submitting that  33 outside British Columbia, which I say has a special  34 status because of the way the colony was formed --  35 MR. GOLDIE:  Yes.  36 THE COURT:  -- that aboriginal rights arose only because of an  37 occupation?  38 MR. GOLDIE:  Yes.  39 THE COURT:  And possession and the Royal Proclamation?  40 MR. GOLDIE:  Yes.  41 THE COURT:  You say without Royal Proclamation in the old  42 territories, there would be no aboriginal possessory  43 aboriginal title?  44 MR. GOLDIE:  Only in respect of those areas actually occupied.  45 See, the -- the essential thing which the Royal  46 Proclamation did was west of the Appalachians and east  47 of the Mississippi. 26664  Submissions by Mr. Goldie        1  THE COURT:  Creating a large  hunting reserve.  2 MR. GOLDIE:  It created a large hunting reserve, and it created  3 that out of cededed or conquered territories.  Now,  4 the American colonies were never very happy with the  5 proposition that the Royal Prerogative extended as far  6 east as the Appalachians line, and it said that one of  7 the causes of the American revolution was the -- was  8 the reserve that was created.  A number of the  9 American colonies said that the reserve was created  10 out of their lands rather than conquered or ceded  11 lands.  But that's a -- sort of a by-product of what  12 the purpose was of the Royal Proclamation, which was  13 to settle unrest among the Indian tribes.  14 THE COURT:  All right.  Well, I think we should adjourn then  15 until 9:30 tomorrow.  Thank you.  16 THE REGISTRAR:  Order in court.  Court stands adjourned until  17 9:30 tomorrow.  18  19 (PROCEEDINGS ADJOURNED UNTIL MAY 16, 1990 at 9:30 A.M.)  20  21 I hereby certify the foregoing to be  22 a true and accurate transcript of the  23 proceedings transcribed to the best  24 of my skill and ability.  25  26  27  28 Kathie Tanaka, Official Reporter  2 9 UNITED REPORTING SERVICE LTD.  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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